United States Fidelity & Guaranty Co. v. Huckstep, 23069.

• Decision Date: 15 June 1934
• Docket Number: No. 23069.,23069.
• Citation: 72 S.W.2d 838
• Court: Missouri Court of Appeals
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. HUCKSTEP et al.

72 S.W.2d 838

UNITED STATES FIDELITY & GUARANTY CO. v. HUCKSTEP et al.

No. 23069.

St. Louis Court of Appeals. Missouri.

June 15, 1934.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be published in state Reports."

Suit by the United States Fidelity & Guaranty Company against Roy Huckstep and another, as administrators of the estate of Dora Lee Huckstep, deceased, and others, substituted for the defendant Dora Lee Huckstep. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

R. L. Motley, of Bowling Green, and May & May, of Louisiana, Mo., for appellant.

W. O. Gray, of Bowling Green, and John Haley, of Clayton, for respondents.

BENNICK, Commissioner.

This is a suit by a corporate surety for judgment for sums paid out by it in satisfaction and discharge of the alleged debt or obligation of its deceased principal; said judgment to be declared a lien upon the property of the deceased principal in the hands of defendant, his sole devisee.

The appeal is by plaintiff, United States Fidelity & Guaranty Company, a corporation, from the final judgment entered against it upon its refusal to plead further after the court had sustained a demurrer to both counts of its petition.

Plaintiff's principal was one William C. Huckstep, the duly elected clerk of the county court of Pike county, Mo., for a term of four years from and after January 1, 1927. The bond was the required statutory bond (section 11666, R. S. 1929, Mo. St. Ann. § 11666, p. 1800), fixed at the minimum penal sum of $5,000, and conditioned upon the faithful performance by the clerk of the duties of his office and the payment over of all moneys which might come into his hands by virtue of his office. The petition alleged that the bond was dated December 31, 1926, and that it was filed and approved according to law.

For the purposes of this appeal, which involves the question of whether the petition stated a cause of action, the important portion of the first count of the petition was the following:

"Plaintiff states that said official bond of the said William C. Huckstep, county clerk as aforesaid, was signed by plaintiff at the special instance and request and on the application of the said William C. Huckstep, and that said William C. Huckstep, in consideration of plaintiff executing said bond, promised and agreed in writing, among other things, to indemnify and keep indemnified plaintiff from, and against any and all loss, costs, charges, suits, damages, counsel fees, and expenses of whatever kind or nature, which plaintiff shall or may, for any cause, at any time, sustain, or incur, or be put to, for or by reason or in consequence of plaintiff having entered into or executed said bond.

"Plaintiff further states that on a duly authorized inspection and audit of the books and accounts of the said William C. Huckstep as such county clerk, made by the auditor of the State of Missouri, it was found that said William C. Huckstep, county clerk as aforesaid, had breached the condition of his said bond by demanding and collecting from the State of Missouri the sum of $240.00 in excess of the legal and statutory fees due him for making the tax books of Pike County, Missouri, as was his duty so to do, for the years 1927, 1928, and from January 1st, 1929, to August 31st, 1929; that said William C. Huckstep, as such county clerk, thereupon became indebted to the State of Missouri in said sum, and that said sum of $240.00 was due and owing to the State of Missouri from the said William C. Huckstep on June 30, 1931, on which said date, the plaintiff was compelled to and did pay the State of Missouri the said sum of $240.00 in discharge of the liability of the said William C. Huckstep, county clerk as aforesaid, by reason of having signed his bond as surety, and thereupon the said William C. Huckstep became indebted to plaintiff in the said sum of $240.00, together with interest thereon at the rate of 6% per annum from June 30th, 1931, and for attorney's fees under his agreement as aforesaid, which plaintiff states is justly due it, and that the sum of $75.00 is a reasonable attorney's fee."

Incidentally, it appears from the petition that plaintiff's cause of action did not accrue until after the death of the said William C. Huckstep, which occurred on August 20, 1929, and likewise until after final settlement of his estate and the discharge of the executrix thereof on November 11, 1930. The defendant in the suit was Dora Lee Huckstep, the widow of the deceased, and the sole devisee under his will, who, as such sole devisee, under plaintiff's theory of the case, took and held the property devised subject to the payment of plaintiff's claim.

Though not identical in language, the second count of the petition was drawn upon the same legal theory as the first count. The breach of the bond pleaded in such second count was the action of William C. Huckstep in withholding from Pike county the sum of $554.34 in excess of the statutory fees due him for making the tax books over the same period covered by the first count. It was alleged that such arrearage and indebtedness was likewise discovered after an inspection and audit of his books and accounts by the auditor of the state of Missouri after his death; that he was justly indebted to Pike county in the sum found to be in arrears; and that payment to Pike county was made by plaintiff in discharge of Huckstep's liability on August 6, 1931, on which date plaintiff's cause of action accrued, after Huckstep's death, and after the administration and final settlement of his estate.

In the second count, plaintiff prayed judgment for the sum of $554.34, with interest thereon from August 6, 1931, at the rate of 6 per cent. per annum, and for the further sum of $175 as a reasonable attorney's fee; said judgment to be a lien upon the property devised to defendant.

The entry of the final judgment for defendant upon plaintiff's refusal to plead further after the court had sustained a demurrer to its petition has already been indicated.

Thereafter, but during the same term, the death of defendant was suggested to the court, whereupon her duly appointed administrators and her heirs at law voluntarily entered their appearances as defendants in the cause in the place of the original defendant; consented that the cause be revived; and adopted the pleadings of the original defendant then on file, and the judgment theretofore rendered in her favor.

Plaintiff's appeal to this court was by the usual course.

Though the record itself does not so show, plaintiff asserts in its brief that the court, upon the assumption that the case was controlled by sections 11810, 11816, R. S. 1929 (Mo. St. Ann. §§ 11810, 11816, pp. 7026, 7033), sustained the demurrer to the petition because of the absence of any allegations therein that judgments for the deficits had been obtained against plaintiff before the amount found by the state audit to be due was paid by it. The provisions and applicability of such statutes will be discussed in the further course of the opinion.

Defendants assert that the trial court might well have sustained the demurrer upon the theory claimed by plaintiff, though they do not concede that it did so. However, they say that there were other...