State v. White

• Citation: 152 Mo. 416,53 S.W. 1064
• Parties: STATE ex rel. TEXAS COUNTY v. WHITE et al.
• Decision Date: 28 November 1899
• Court: United States State Supreme Court of Missouri

53 S.W. 1064

152 Mo. 416

STATE ex rel. TEXAS COUNTY v. WHITE et al.

Supreme Court of Missouri, Division No. 2.

November 28, 1899.

CLERK OF COURT — OFFICIAL BOND — SURETIES — LIABILITY.

The sureties on a bond given in 1890 by a clerk of the court as ex officio recorder, as required by Rev. St. 1889, § 7425, requiring a recorder's bond to be conditioned merely for the faithful performance of the duties of his office, and the delivery of books, etc., to his successor, are not liable for any fees collected by him as recorder and not accounted for, since there was no law in force at that time requiring him to account for any fees as recorder, but such duty was imposed on him as clerk of court, under Rev. St. 1889, § 1966, and Acts 1891, p. 152, §§ 30, 31.

Appeal from circuit court, Texas county; C. C. Bland, Judge.

Action by the state of Missouri, at the relation and to the use of Texas county, against C. W. White and others. From a judgment for defendants, plaintiff appeals. Affirmed.

John D. Young, Robert Lamar, and John H. Sanks, for appellant. Hines & Woodside, for respondents.

GANTT, P. J.

This is an action on the bond of C. W. White as recorder of Texas county, in this state, for fees alleged to have been collected by him in excess of those allowed him by law, and not turned over to the county treasury. There was a demurrer to the evidence on the ground that the bond sued on was not one conditioned for the payment of money or fees collected, and no law requiring such bond. The demurrer to the evidence was sustained, and plaintiff appeals.

The jurisdiction of this court on appeal is sustained by the fact that a county is a party to the action. The sole point for decision is the propriety of sustaining the demurrer. The petition avers that at a general election held in Texas county on November 4, 1890, the defendant White was elected clerk of the circuit court, and ex officio recorder of deeds for said county, for a term of four years; that he received his certificate and duly took the oath of office, and afterwards, on November 24, 1890, said defendant White, as principal, and his co-defendants, as his sureties, duly executed a bond conditioned that "if said White should faithfully perform all the duties enjoined on him by law as recorder, and for the delivery up of the records, books, papers, writings, seals, furniture, and apparatus belonging to the office, whole, safe, and undefaced, to his successor, then this obligation to be void; otherwise, remain in full force and effect." This bond was approved November 25, 1890, by the judge of the circuit court; and on January 5, 1891, said White entered upon the duties of said office, and continued up to and including February 21, 1894. For breaches of said bond, plaintiff states that said White, as ex officio recorder, has not accounted for and paid over all moneys that came into his hands by virtue of said office, in this: First, that he made what purported to be his quarterly abstract of fees for 1891, in which he reported a sum sufficient to pay his salary allowed by law, and $304.91 in addition thereto, which he claimed he had paid out as deputy hire, which was allowed and approved by the county court, whereas in fact he collected and earned as recorded $495.50 in excess the fees he reported, which excess he has at all times failed and refused to pay over and account for as required by law; second, that in 1892 he reported fees to the amount of his lawful salary, and $108 in excess, which he asked for deputy hire, which settlement was approved by the court, and in addition thereto he reported $192.20, which he paid into the treasury, whereas plaintiff avers he...