Finney v. State

| Mo. | Oct 15, 1845

Scott, J.,

delivered the opinion of the court.

This was an action of debt on an administration bond executed by > Hugh O’Neil, as administrator of the estate of Michael Reilly, de-deased, with the appellee Finney and others as his securities. Phillip McGoWen was joint administrator with Hugh O’Neil. McGowen died, and after him O’Neil. The suit was against the securities of O’Neil. The declaration alledges that McGowen died, and that after his death, O’Neil, the surviving administrator became possessed of S2,877 13, belonging to the estate of Michael Reilly, deceased. It is further alledged, that after O’Neil became possessed of said sum of money, and before payment and delivery thereof according to law, the said O’Neil died, and Peter A. Walsh, as public administrator, took charge of the estate. The breach assigned is, that neither the said McGowen nor O’Neil, during their joint lives paid, nor the said O’Neil after the death of said McGowen, would or did faithfully account for, pay and deliver the said sum of money according to law, and that since the death of said O’-Veil, his legal representatives, or any of them have not paid or delivered to Peter A. Walsh, the successor of O’Neil, the said sum of money, or any part thereof

Tiie defendants below prayed oyer of the bond, which being granted, they demurred to the declaration. The demurrer was overruled. A jury was then sworn to try the truth of the breach of the condition of the bond, alledged in the declaration, and to assess the damages arising thereon.

The jury by their verdict find that neither McGowen nor O’Neil, in their lifetime, nor O’Neil after the death of McGowen, did pay over the money, but omit saying anything in relation to the non-payment after the death of O’Neil, by his representatives.

The overruling the plaintiff’s demurrer, and the defective finding in relation to the truth of the breach of the condition of the bond set out in the declaration, are the errors complained of by the appellants, defendants below.

It is urged for the appellants, that the declaration shows the money in the hands of O’Neil at the time of his death, but that there was no person shown to be in existence, who could by law pay it to his successor.

This is á suit, not against O’Neil nor his representatives. It'is against his sureties. The breach of the condition alledged is, that O’Neil did not pay the money, nor has it been paid since his death. When O’Neil died there ceased to be any representative of Michael Reilly’s estate the representative of O’Neil, as such, would have had no control over any trust fund, which had been committed to the care of O’Neil. Such fund would have belonged to the estate of Reilly. If this fund did not exist, the conversion of it by O’Niel, constituted a demand against his estate, which could have been obtained, only like any other demand. This being a suit against O’Neil’s sureties, on a bond conditioned that O’Neil would account for money, and it appearing that the money" was not paid by him during his life, and that it has not been paid since,‘ on what principle is a suitor compelled to go further, and aver that there was an administrator of O’Neil, and that he had not paid it. Suppose there had been no administration on O’Neil’s estate, or be had gone abroad and died, leaving no effects here ; how could there have been an administration ? Had there been an administration on O’Neil’s estate, the probate court would have had no authority to make an order on O’Neil’s administrator as such, relative to Reilly’s estate ; there would have been no privity between them. Had the money existed, and could it have been identified as the trust fund, M. Reilly’s admr. might have compelled its delivery, or if it had been made way with, B would have been a demand against O’Neil’s estate.

In accordance with the previous decimals of iV<c o< 1 tl.o d,--¡ tive finding of the jury could only be taken advantage of, by motion in arrest. Where a material issue is entirely overlooked by the jury, and the finding is not a general one, the want of such finding in a material issue, may be taken advantage of on writ of error, though no motion in arrest be made in the inferior court. Jones & Jones vs. Snedicor, 3rd Mo. Rep. 390 ; Pratt vs. Rogers, 5 Mo. Rep., 53. But when the finding is a general one, it will raise a presumption that all the issues have been duly considered by the jury, (Stout vs. Calvar, 6 Mo. Rep. 256 ;) and where the finding is merely defective or imperfect, the judgdment will not be reversed, unless a motion has been made in the inferior court to arrest the judgment, and overruled. Davidson vs. Peck, 4 Mo. Rep. 445. In the present case there was but one breach before the jury, and their verdict upon that breach, did not embrace all the matters which they should have found to authorize their conclusion in favor of the plaintiff ; but inasmuch as the attention of the circuit court was not directed to the defect, where it would have been readily corrected, no advantage can be taken of it here.

Judgment affirmed.