State v. Peterson

• Decision Date: 09 March 1897
• Citation: 142 Mo. 526,39 S.W. 453
• Parties: STATE ex rel. SPAULDING v. PETERSON et al.
• Court: Missouri Supreme Court

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, 1890, aggregating $1,304.35, which had been paid by the bank. They also offered evidence tending to prove that relator received money from a deputy from May 21 to November 15, 1890, aggregating $482.90. The constable and his deputy testified that these payments were made on account of the fees specified in the statements furnished plaintiff. The checks themselves show that they were paid on account. In making up his report the referee excluded all this evidence, on the ground that payment had not been pleaded. The ruling of the referee was sustained by the court on exceptions thereto, and is the first error assigned by appellants.

1. The Missouri Code requires any new matter constituting a defense to be pleaded. Payment is a fact ordinarily not required to be negatived in the petition, and in such case is new matter, and, to be made available as a defense, must be pleaded. In such case proof of prior indebtedness is, prima facie, proof of liability. A general denial does not raise the issue of payment in such cases. But, in cases in which nonpayment is a material fact necessary to constitute plaintiff's cause of action, it must be alleged in the petition and proved as a part of plaintiff's case, and defendant can controvert it, under a general denial, by...