Price v. Johnson County

15 Mo. 433 | Mo. | 1852

Scott, J.,

delivered the opinion of the court.

This was a hill in chancery, filed by Price against Johnson county, in which it is alleged : That Price was elected sheriff of said county for the years 1846 and ’47, and thereby became ex-officio collector of the revenue; that at the August term of the county court for said county, on the 17th day of the month, he settled with said court for the revenue for the year 1847, on which settlement he became indebted to the county $300 and upwards; that this settlement was approved and entered of record; that as he collected the revenue, he from time to time paid it into the county treasury and took J. S. Raynol’s receipt therefor, who was then the treasurer; that he had never before made a settlement, and that then made was voluntary on his part. The day after the settlement, the balance found due was paid into the treasury, and on the presentation of the treasurer’s receipt for said sum, he obtained a quietus from the clerk of the county court under his seal of office; that on the same day he paid $80 and upwards, due for license, &e., and obtained the clerk’s receipt for the same; that on the 17th August, 1848, he obtained from the county court, under seal, a certificate that the revenue for the year 1846 had been paid; that on the 23rd day of August, during the same term, the county court set aside the said settlement, and issued a summons to him (Price) to appear on the 28th day of the month, to have the previous settlement corrected; that he was served with the notice required on the same day the order was made requiring him to be summoned, but he did not appear, and on the day appointed, on a re-examination of his accounts, he was charged with the sum of $1393 94; and at the next term of the said court, on the 28th November, a judgment for said sum was rendered against him, with thirty per cent, interest thereon per annum. On this state of facts, an injunction, on the ground that the proceedings of the county court were void, it having no authority to set aside the first settlement, was prayed and granted.

From the various answers and the evidence in the cause, it appears that Price, the complainant, was sheriff of Johnson county for the years 1844, 5, 6, 7; that as he would collect the revenue from time to time, he would take single receipts from the treasurer for the several sums so paid, and when a final settlement was to be made for the whole year, these single receipts would be given up, and duplicate receipts for the amount of them taken, by which a quietus was obtained from the clerk of the county court; that in June, 1847, Price, under pretence that he wanted to settle for the revenue due for 1845, obtained from the treasurer duplicate receipts for the sum of $1916 95, being the amount due for that year under a promise that the single receipts, whose sums were included in the above sum of $1916 95, should be delivered up to the treasurer. These single receipts never were delivered, and so far from it, Price introduced them into the settlement of August, 1848, and again got credit for them in that settlement. These facts appearing to the court, Price was informed that the settlement would be set aside unless he appeared and explained the matter. This Price declined to do, and on the 23rd of August the court vacated the order of settlement made on the 17th, and directed Price to be summoned to appear and make a settlement of his accounts on the 28th day of the month. Price was duly served with the order, but refused to appear, and on the day appointed the court proceeded to a settlement of his accounts, and found him indebted to the county in the sum of $1393 94, and at the November term of said court entered judgment against him for that amount with thirty per cent, per annum interest. Between the settlement in August and the rendition of the judgment in November, the judges who acted in August had been replaced by others. Price told one of the judges who made settlement with him, and who waited on him to urge him to appear and show cause why the first settlement should not be set aside, that he had receipts to the amount of $500, or $600, or $700, which the county treasurer might have if they would do him any good. Price gave as reasons for not appearing, the advice of counsel and a belief that the judges were prepossessed in favor of the treasurer.

From the view we have taken of this matter, the foregoing general statement is sufficient for a proper understanding of the cause and the points on which it turns. The court below entered a decree similar to that entered in the county court, dissolved the injunction and dismissed the bill; from which decree the complainant appealed.

The first point raised by the complainant is, that the county court misconceived its authority in proceeding against him under the statute regulating county treasuries, instead of that concerning the revenue. The 4th section of the 4th article of the revenue act prescribes that every collector of the revenue, having settled according to law, shall forthwith pay the amount found due into the county treasury, and take the clerk’s receipt therefor. The 5th section of the same article imposes a penalty of two and a half per cent, a month for a failure to pay over, but is silent as to any remedy for the coercion of payment. The 45th sec. of the 3rd article of the same act, gives the process of attachment merely to compel a settlement, not to enforce payment. So far then as the county revenue is concerned, this act clearly fails to provide an efficient mode for its collection. Indeed the main scope of the general rerenuelaw is to provide for the assessing the State and county revenue, and for collecting the State revenue. The act regulating county treasuries is that designed to govern the conduct of those entrusted with the collection of the county revenue.

The first section of the 2nd article of this act prescribes, that all collectors chargeable with any money belonging to the county, shall settle their accounts at each stated term of the county court. But it is objected that this section does not contemplate settlements for the county revenue arising from taxes, for that revenue is payable only once a year, and therefore there could be no quarterly settlement for it. But suppose that the collector fails to make settlements for the county revenue, is there no remedy but the slow and tedious one of a suit upon his bond, or that by attachment, which may be so easily evaded. This shows the policy of the 2nd section of the above recited act, which declares that if any person, chargeable with money belonging to any county, shall fail to make settlement as above directed, the court shall adjust his accounts according to the best information they can obtain.

If there is a summary method for coercing a settlement for one species of revenue, why not for all? Is there any difference in principle between compelling a settlement for one species of revenue and not another? If a collector has revenue for which he failed to make settlement, he is certainly chargeable with money belonging to the county, and if so, he is subject to the provisions of the act regulating County Treasurers, Because he is required to make but one settlement a year for county taxes, we are not to construe the act in such a way as will exempt him from the obligation of making any settlement at all under its provisions. But it is said that Price had made his settlement and therefore the power of the county court in relation to that matter was functus officio and another settlement could not be required of him. The settlement made by Price on the 17th August had been set aside, and there was no longer a barrier in the way. The county court clearly had power to set aside the settlement during the term. If a collector prooures the entry of a settlement by forgery, or by falsehood and fraud, and the court should have reason to believe that it was procured by these means, would it not be in its power during the term to set the entry aside and require of the collector another settlement? "Would this be a settlement according to law which is demanded by the statute? The mere setting aside the settlement was no direct injury to Prioe. By that act his rights were not compromised. It did not commit the court against restoring the entry should it prove to have been correct. This was the most suitable mode of procedure. It was the logical method of effecting the design in view (if I may so speak.) It was the only manner of avoiding the illogical exceptio ejusdem rei cujm petitur dissolution which it might have been foreseen would be urged in behalf of Price. It was the re-examination of his account and finding a greater balance against him than was asertained at the previous settlement, that caused the injury, if any, to Price: Of this settlement he had ample notice. The case of Caldwell & Lockridge, 9 Mo. Rep., is not opposed to this. There it was held that the setting aside of a judgment in favor of an administrator, after he had made a full settlement of his estate, and resigned, and the entering of- a judgment against him without notice, though during the same term, was void. In that case, the setting aside of the first judgment and the entering of the second were one and the same act. It was all done at once co instanti. Here tire judgment is merely set aside and the party required to attend at a future day, of which he had due notice, before any other judgment was rendered against him. It is obvious that this case is distinguishable from that of Caldwell & Lockridge. General references made use of in delivering an opinion must always be construed in reference to the facts and circumstances of the case in which they are uttered. In the cause now under consideration, had the county court rendered judgment against Price on the same day on which the settlement was vacated and had nothing further been done, then it might have been contended that the cases were parallel.

This view of the subject relieves the court from the necessity of examining some of the questions which were debated in the argument of this cause. The county court having' jurisdiction to enter "the judgment sought to be enjoined, there was no authority to enter into an examination of the merits of the judgment of the county court. The injunction was a release of errors at law, and the proceedings on an in^ junction are not appellate in their nature. An injunction is only granted for the reason that by the course of proceedings established by law, in the court in which the judgment was rendered, the party could not make his defense, or that since the trial, something has transpired which would make it inequitable to enforce the judgment. We are satisfied with the justice of the judgment of the county court. There is no real hardship on Price in this matter. He was badly advised, considering his character was involved. Pie had long been honored by the people of the county in which he resided. He knew that there was a blasting imputation on his character involved in the proceedings of the county court, yet yielding to the promptings of self interest he refused to avail himself of the opportunity of defense offered, under the delusive hope, that the technicality of a formal receipt would relieve him from any liability that might be imposed, upon the re-examination of his account. The pretence that the judges were prejudiced against him was fallacious. If the judges who made the settlement in August were prejudiced, they had been replaced by others and he had an opportunity in November following to appear before another bench of judges, and show that the first settlement was correct. This he failed to do. After the law in its mildness has offered a party two opportunities of investigating the merits of a judgment against him, and he has refused to avail himself of them, it is with a bad grace that he appeals to the aid of a court of equity, and the ungraciousness of the act is heightened when it is considered, that in coming into equity he only insists on a supposed technical advantage he had acquired at law.

Whether Raynol was a competent witness is not a matter material to be determined from the view that has been taken of this cause. If he was primarily liable for the money which his evidence would show was due from Price, although he had the same advantage as Price of a settlement in his favor, yet it appears he was willing to forego it and enter into a re-examination of his accounts. There is enough evidence in the record, when the conduct of Price is taken into consideration, to establish the justice of the judgment against him, without relying on that of the county Treasurer.

The other judges concurring, the decree of the circuit court will be reversed, and a decree entered, dissolving the injunction and dismissing the bill.