Pugh v. Evans

31 Mo. App. 290 | Mo. Ct. App. | 1888

Ellison, J.

This action is by an ex-clerk of the circuit court of St. Clair county against his successor in office. The petition alleges that in each of the years of plaintiff.’s incumbency the fees earned and collected by him did not amount to the sum allowed him by law as salary, after paying his deputy ; and that his settlements. with the county court showed this; that he earned $113.05 in fees in suits pending in the circuit court, which had not been collected during his term, but were collected by defendant, Ms successor ; that he had demanded these fees of defendant and had been refused by him.

Defendant demurred to the petition as stating no cause of action. The demurrer was sustained and plaintiff refusing to plead further, judgment was entered for defendant. , .

I am of the opinion that a circuit cleric is entitled to receive of the fees earned by him a sum equal to the amount allowed him by law, although such fees may not be collected during his term and that the clerk receiving them would hold them in trust, for this purpose. It seems to be the view of the Supreme Court, as expressed in Thornton v. Thomas, 65 Mo. 272, that the fees earned by a clerk belong primarily to the county, and out of which the clerk is allowed by law to retain a certain sum, the amount depending upon the population' of his county; that the clerk holds such fees as a trustee for the purposes for which the law has destined them. In that case it was not determined, “whether one of these trusts would be to supply a deficiency in the receipts of a former year to cover expenses and salaries,” the facts in that case not calling for a decision of such question. But the question is involved here, and I think the trust •would be to supply the deficiency in the ex-clerk’s salary. Such view is certainly more consonant with justice and fairness. There can be no public interest subserved in letting money earned by the clerk and which is within the bounds of his salary, go to the county. Such is undoubtedly the proper construction of the statute. A case could well be supposed of a clerk filling a short unexpired term in which all of the fees earned by him would be paid in to his successor. I cannot think that under such state of facts he would get nothing for his services.

The foregoing views do not fully dispose of the case. If the petition fails to state a cause of action, although not for the reason urged in the demurrer, the judgment must be'affirmed. The petition does not allege that defendant liad notice of the deficit in plaintiff’s salary; nor does it appear whether defendant had the money in his hands, or had settled with the county court, and for this reason the demurrer was properly sustained.

In order to hold defendant liable, it should be alleged and shown that he had knowingly misapplied the trust fund. If, without knowledge of plaintiff ’ s claim, defendant made his regular settlement with the county court and turned over money collected by him, though earned- by plaintiff, he ought not to be held liable ; for he cannot be supposed to be aware of the deficit, without some sort of notice to that effect.

The judgment, with the concurrence of the other judges, is affirmed.