The State ex rel. Christian County v. Gideon

• Decision Date: 12 November 1900
• Parties: THE STATE ex rel. CHRISTIAN COUNTY, Appellant, v. GIDEON et al
• Court: Missouri Supreme Court

59 S.W. 99

158 Mo. 327

THE STATE ex rel. CHRISTIAN COUNTY, Appellant, v. GIDEON et al

Supreme Court of Missouri, First Division

November 12, 1900

Appeal from Christian Circuit Court. -- Hon. James T. Neville Judge.

Reversed and Remanded.

W. A Long, J. C. West and Jas. R. Vaughan for appellant.

(1) In its settlements with county officials, for fees collected, or other funds, the county court acts in a ministerial or administrative capacity, and its acts not being judicial have not the conclusive effect of ordinary judgments. Marion County v. Phillips, 45 Mo. 75; State to use v Roberts, 60 Mo. 402; State to use v. Roberts, 62 Mo. 388; Cole County v. Dallmeyer, 101 Mo. 57; Sears v. Stone County, 105 Mo. 236; Scott County v. Leftwich, 145 Mo. 26. And where the clerk fails to report items or fees collected by him, and the court makes a settlement with him in ignorance thereof, neither the law of contracts holding such settlements valid until set aside, nor the doctrine of res adjudicata can apply. Callaway County v. Henderson, 139 Mo. 510; State ex rel. v. Ewing, 116 Mo. 136; State ex rel. v. Henderson, 142 Mo. 598. (2) In order to recover, it was not necessary to have set aside, through legal proceedings, the approval of his quarterly settlement wherein this allowance was made to him. Upon proof of fraud, the settlement would be ignored. The settlement as to it became a nullity. State ex rel v. Roberts, 60 Mo. 402; McFarland v. Railroad, 125 Mo. 253; Homeuth v. Street Railway, 129 Mo. 629; Isaacs v. Skrainka, 13 Mo.App. 593. It is not necessary to set aside a fraudulent conveyance before recovery in ejectment can be had. Chandler v. Bailey, 89 Mo. 643; Potter v. Adams, 125 Mo. 118. All transactions which are permeated with fraud or based upon fraud, become nullities, when such fraud is proven upon an issue properly raising it, as was done in this case.

Watson & Pepperdine for respondents.

OPINION

BRACE, P. J.

This is an appeal from a judgment of the Christian County Circuit Court sustaining a demurrer to the plaintiff's petition. The petition is as follows:

"The plaintiff states that on the 4th day of November, 1890, the said Martin V. Gideon having been elected to the office of Clerk of the Circuit Court of said county, he thereby became ex-officio Recorder of Deeds of said county, and on said day he as the principal, and the remaining defendants as his securities, made and entered into a bond payable to the State of Missouri in the penal sum of seven thousand dollars, conditioned as follows: That if he, the said Martin V. Gideon, should faithfully perform the duties of his office as clerk of the circuit court of said county, and should pay over all moneys which might come to his hands by virtue of his said office, and should himself, or by his executors or administrators, deliver to his successor in office safe and undefaced all the books, records, seals, apparatus and furniture belonging to such office then said bond was to be void but otherwise was to remain in full force and effect in law. As a breach of the condition of the said bond the said plaintiff states that the said Martin V. Gideon as such clerk and exofficio recorder of deeds failed and neglected to keep a correct account of all fees received by him as such officer, as by law required, and to make quarterly returns to the county court of said county of all fees received by him to the dates of said returns, as required by law; that while he made returns and therein pretended to include all of such fees and moneys received from all sources as such fees, his said returns and statements were false, fraudulent and incorrect, and that said Gideon as such clerk omitted from such returns and statements the sum of three dollars for the first quarter of 1891; the sum of $ 96.55 for the third quarter of 1891; and the sum of one dollar for the fourth quarter of 1891; the sum of $ 19.94 for the first quarter of the year 1892; the sum of $ 17.65 for the second quarter of the year 1892; the sum of $ 2.60 for the third quarter of the year 1892; and one dollar for the fourth quarter of 1892; for the first quarter of the year 1893, the sum of $ 5.60; for the third quarter of 1893 the sum of $ 186.25; for the second quarter of the year 1893 the sum of $ 50.35; and for the fourth quarter of said year the sum of $ 3.65; for the first quarter of 1894 the sum of $ 95.92; for the second quarter of the year 1894 the sum of $ 45.25; for the third quarter of the year 1894 the sum of $ 12.95; and for the fourth quarter of said year the sum of $ 11. That while on account of the failure and neglect of the said Gideon, as such clerk, to keep correct accounts of all fees, and books showing the same, the exact date when such fees were received may not be accurately stated, the plaintiff avers that said clerk and ex officio recorder Gideon received during the year of 1891 the sum of $ 101.55; for the year of 1892 the sum of $ 41.19; for the year 1893 the sum of $ 245.85; for the year 1894 the sum of $ 165.12; all of which he failed and neglected to pay to the county treasurer or to said county, or to report or in any way to account for in his settlement with said court, and all of which he failed to report to said court as by law required, but falsely stated and represented to the said court that the fees which he did return and report were all that he had received as such clerk and recorder. That in addition to such fees he, the said clerk and ex officio recorder, received during the years 1891, 1892, 1893 and 1894 for recording deeds, mortgages and other instruments in writing which were required to be recorded under the laws of this State, the sum of $ 241.95; for recording justices' and other transcript fees, the sum of $ 56.80; for services rendered in the preparation and certification of pension papers as required by the laws of the United States the sum of $ 12; for fees, received by him in the acknowledgment of deeds and other instruments, the sum of $ 157.70; for fees received by him in back tax suits $ 100.70; fees for marriage licenses issued $ 21; fees paid him by the sheriff of Christian county, $ 61.07. That said Gideon, as such clerk and ex officio recorder of deeds, failed and neglected to keep any correct account of these fees, failed and neglected to report or include these fees and sums in any of his said settlements and that they were to that extent incorrect and fraudulent; that said Gideon, as such officer, likewise failed to pay said sums, or any of them, over to the said county or its treasurer, or in any way account for the same.

"Plaintiff states that the county court, after it had discovered that said Gideon, as such clerk, had failed to truly and correctly account for in quarterly settlements and statements to said court the fees and moneys received by him as such clerk and recorder, proceeded at the August term, 1896, of said court, and previous thereto, to ascertain the amount of such fees and moneys so received by said clerk and recorder and not reported, and did at said August term, 1896, ascertain, and by its order of record ascertain and set forth that such clerk and recorder had received in addition to all sums due him for salaries, clerk hire, deputies and assistants, and in excess of all sums allowed him by law for his own salary, for deputy hire, assistants and clerk hire, and all other sums allowed him by law, the sums and amounts above named and set forth, and did by its said order of record direct and order said Gideon, clerk, to pay into the treasury of said county the sums named above so found by said county court to be due said county, for fees collected and not reported for the times mentioned and stated above.

"Plaintiff states that at the time said clerk and recorder returned to said county court said quarterly settlements, the said court was not informed of the false and fraudulent character thereof, and had no knowledge of the omission therefrom of the items and amounts aforesaid until the February term, 1896, and relied upon the truth and correctness of the same and was thereby misled and induced to omit from said settlements the amounts aforesaid, and that said quarterly settlements were in fact fraudulent, null and void; that said Gideon, clerk and recorder, having failed and neglected for more than fifteen days after the making and delivery to him of a copy of said order, to pay said money and excess of fees into the treasury of said county as by law required, the said county court, by its order entered of record at its November term, A. D. 1896, ordered that an action be brought upon the bond of said clerk for the said moneys, fees and funds, aforesaid, and ordered to be paid over; that on account of such failure to keep correct accounts of fees so received and report the same to said county court, to account for and pay over said moneys as so ordered, the plaintiff avers that it has been damaged in the sum of eighteen hundred dollars.

"And for another breach of the conditions of said bond, the plaintiff avers that at the quarterly settlement and return of said clerk for the last quarter of the year 1894, and as a part of said return and settlement it was set forth and represented to said county court that said clerk and recorder had paid out for salaries, assistants and clerk hire the sum of five hundred dollars in excess of what he had actually paid out and expended; that said statement and representation was untrue and was made for the purpose of defrauding said county court out of said sum of five hundred dollars; that said quarterly settlement made for the last quarter of the year 1894 was incorrect and fraudulent for the reasons above set forth, and that said county court was induced by the fraud and misrepresentation of...