State v. Peterson

CourtMissouri Supreme Court
Writing for the CourtMacfarlane
Citation142 Mo. 526,39 S.W. 453
Decision Date09 March 1897
PartiesSTATE ex rel. SPAULDING v. PETERSON et al.
39 S.W. 453
142 Mo. 526
STATE ex rel. SPAULDING
v.
PETERSON et al.
Supreme Court of Missouri, Division No. 1.
March 9, 1897.

ACTION ON CONSTABLE'S BOND — FAILURE TO TURN OVER JUSTICE'S FEES — WAIVER — PLEADING — PAYMENT — FINDINGS OF REFEREE.

1. In an action on a constable's bond, for failing to return a justice's fees after collection, brought under Rev. St. 1889, §§ 6317-6325, creating a penalty for failure to pay over moneys collected, the fact of payment does not constitute new matter of defense, which, under the Code, must be pleaded, but proof of payment may be made under a general denial.

2. Under Rev. St. 1889, § 6320, making a constable and his bondsmen liable to a penalty of 100 per cent. per annum for failing to pay over, when requested, money collected on a judgment "or other demand," they are liable for a failure to turn over fees of a justice of the peace.

3. A waiver of the penalty for failure of a constable to turn over moneys collected (Rev. St. 1889, §§ 6317-6325) is not available unless pleaded.

4. Where the complaint in a suit on a constable's bond for his failure to turn over fees of a justice after collection contains 1,600 independent causes of action, a general finding by a referee is insufficient. There should be separate findings on each count.

Barclay, C. J., dissenting.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by James J. Spaulding against Henry Peterson and others. From a judgment for plaintiff entered on the report of a referee, defendants appeal. Reversed.

Lubke & Muench and J. W. Collins, for appellants. T. J. Rowe, for respondent.

MACFARLANE, J.


Relator, Spaulding, was a justice of the peace in the city of St. Louis from November 8, 1888, to December 1, 1890, during which time defendant Peterson was constable of the same district. As constable said defendant at the beginning of his term gave a bond in the sum of $5,000, with the other defendants as securities. The action is by relator, upon said bond, to recover the full amount of the penalty thereof. The amended petition, upon which the case was tried, contains over 1,600 counts, and each count charges three separate breaches of the bond. The second of these is that defendant, as constable, collected the fees and costs coming to relator as justice of the peace, and a refusal to pay the same over to him, and that payment was demanded December 1, 1890. The other two breaches relate to a failure to return and falsely returning executions. There was no evidence in support of these. Each count covers a particular case in which fees were taxed in favor of relator. Interest is demanded at the rate of 100 per cent, per annum. The answer, after admitting the execution of the bond, denies each other allegation of the petition and each count thereof. The case was referred to H. N. Crane, who took an account and made report. By his report the referee found, in the alternative, that defendant had collected fees due to relator, under one theory, in the sum of $1,928.68, and, on another theory, in the sum of $1,226.13. Interest was calculated at 100 per cent. per annum from February 17, 1891, which, under either finding, would make the damages exceed $5,000, the penalty of the bond. Damages were therefore assessed at $5,000. Exceptions to the report were filed by defendants, and overruled by the court. Judgment was entered in favor of relator, and defendants appealed.

In proof that defendant collected the fees as charged in numerous counts of the petition, plaintiff introduced in evidence five written statements furnished him by defendant, which give in detail the style of the cases, and the amount of plaintiff's fees collected in each. The aggregate amount shown by the statements and found by the referee is $2,113.38. Plaintiff admitted that $184.70 of this amount had been paid him by one of defendant's deputies in satisfaction of the cost of certain cases counted upon. For this amount defendant was given credit. Plaintiff testified that the costs in none of the other cases specified in the statements had been paid him. Defendants offered in evidence eight checks made by the constable, payable to relator, dated along from April 30, 1890, to September 25,...

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27 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...451; Peyton v. Rose, 41 Mo. 257; Flinton v. Palmer, 177 S.W. 777; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; State ex rel. v. Peterson, 142 Mo. 526, 39 S.W. 453; St. Louis v. Senter Comm. Co., 340 Mo. 1078, 102 S.W. (2d) 103; Niederberg v. Golluber, 162 S.W. (2d) 592; Corby v. Taylor, 35 M......
  • Exchange Bank v. Turner, No. 27081.
    • United States
    • Missouri Supreme Court
    • February 25, 1929
    ...The judgment is wrong, and, in fact, is a void judgment and should be arrested. Boyce v. Christy, 47 Mo. 70; State ex rel. v. Peterson, 142 Mo. 526; Wells v. Adams, 88 Mo. App. 215. If the amount of any count or cause of action of the petition is not ascertained and decided, it is difficult......
  • Conkling v. Weatherwax
    • United States
    • New York Court of Appeals
    • April 18, 1905
    ...12 N. Y. Supp. 665, and Witherhead v. Allen, 4 Abb. Dec. 628, 633. The conflict of authority extends to other states. State v. Peterson, 142 Mo. 526, 39 S. W. 453,40 S. W. 1094;Wheeler & Wilson Mfg. Co. v. Tinsley, 75 Mo. 458;McElwee v. Hutchinson, 10 S. C. 436;Hubler v. Pullen, 9 Ind. 273,......
  • State v. Bland, No. 39399.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1945
    ...City of St. Louis to Use of Seibert v. Allen, 53 Mo. 44: Sturgeon v. St. Louis, K.C. & N. Ry. Co., 65 Mo. 569; State ex rel. v. Peterson, 142 Mo. 526; State ex rel. Collins v. Dulle, 45 Mo. 269; Clark's Admx. v. Hannibal & St. Joseph R. Co., 36 Mo. 202; Owens v. Hannibal & St. Joseph R. Co.......
  • Request a trial to view additional results
29 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...451; Peyton v. Rose, 41 Mo. 257; Flinton v. Palmer, 177 S.W. 777; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; State ex rel. v. Peterson, 142 Mo. 526, 39 S.W. 453; St. Louis v. Senter Comm. Co., 340 Mo. 1078, 102 S.W. (2d) 103; Niederberg v. Golluber, 162 S.W. (2d) 592; Corby v. Taylor, 35 M......
  • Exchange Bank v. Turner, No. 27081.
    • United States
    • Missouri Supreme Court
    • February 25, 1929
    ...The judgment is wrong, and, in fact, is a void judgment and should be arrested. Boyce v. Christy, 47 Mo. 70; State ex rel. v. Peterson, 142 Mo. 526; Wells v. Adams, 88 Mo. App. 215. If the amount of any count or cause of action of the petition is not ascertained and decided, it is difficult......
  • Conkling v. Weatherwax
    • United States
    • New York Court of Appeals
    • April 18, 1905
    ...12 N. Y. Supp. 665, and Witherhead v. Allen, 4 Abb. Dec. 628, 633. The conflict of authority extends to other states. State v. Peterson, 142 Mo. 526, 39 S. W. 453,40 S. W. 1094;Wheeler & Wilson Mfg. Co. v. Tinsley, 75 Mo. 458;McElwee v. Hutchinson, 10 S. C. 436;Hubler v. Pullen, 9 Ind. 273,......
  • State v. Bland, No. 39399.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1945
    ...City of St. Louis to Use of Seibert v. Allen, 53 Mo. 44: Sturgeon v. St. Louis, K.C. & N. Ry. Co., 65 Mo. 569; State ex rel. v. Peterson, 142 Mo. 526; State ex rel. Collins v. Dulle, 45 Mo. 269; Clark's Admx. v. Hannibal & St. Joseph R. Co., 36 Mo. 202; Owens v. Hannibal & St. Joseph R. Co.......
  • Request a trial to view additional results

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