State v. Shipman

• Decision Date: 18 December 1894
• Citation: 125 Mo. 436,28 S.W. 842
• Parties: STATE, to Use of LAWRENCE COUNTY, v. SHIPMAN et al.
• Court: Missouri Supreme Court

28 S.W. 842

125 Mo. 436

STATE, to Use of LAWRENCE COUNTY, v. SHIPMAN et al.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

COUNTIES — SETTLEMENT WITH COUNTY OFFICERS — CONCLUSIVENESS.

Where the county court, in settling with the collector of revenue, allows him an excessive commission through mistake of law, the settlement is binding on the county.

Appeal from circuit court, Lawrence county; M. G. McGregor, Judge.

Action by the state of Missouri, to the use of Lawrence county, against James W. Shipman and others, upon a bond. Judgment for plaintiff, and defendants appeal. Reversed.

R. H. Landrum, Gibbs & Jennings, and Henry Brumback, for appellants. W. Cloud and R. H. Davis, for respondent.

GANTT, J.

An action was brought against the defendant and his sureties on his bond as collector of revenue of Lawrence county. There were two counts in the petition; the first charging him with retaining a larger commission on his collections for the year 1887 than allowed him by law, and the second with retaining greater commissions on his collections for 1888 than allowed by law. The finding and judgment on the first count were for defendants, and the county did not appeal. On the second count, the court, sitting as a jury, found for the plaintiff, and gave judgment against the defendant Shipman and his sureties, for $456.25. On the trial it appeared that the collector, at the March term, 1889, made his final settlement with the county court, and fully reported all the taxes chargeable against and collected by him for the year 1888. This settlement shows that he was allowed a commission of 4 per cent. on his collections. It was admitted that the total amount of the taxes extended for 1888 was $66,566.07; that the total sum collected, except for state revenue, was $45,677.74, and the state revenue amounted to $7,320.31. By the statute (section 7640, Rev. St. 1889) it is perfectly clear defendant was entitled to commission of only 3 per cent. on the amounts levied, and not 4 per cent., as he was allowed. But the settlement was made with the court, with the full knowledge on its part of all the facts. The facts are not now disputed, and there is no charge of fraud or collusion made. The county court simply made an error of law. The error was in allowing a commission of 4 per cent. on a tax book amounting to $66.566.07, when the statute allowed only 3 per cent. The trial court declared the law to be that, although the court settled with defend...