65 Mo. 464 | Mo. | 1877
This suit was instituted upon the bond of defendant, Smith, as collector of Bates county. The petition in substance alleges that Smith was elected sheriff- and ex-officio collector of said county on the 3rd day of November, 1868, for two years from the 1st day of January, 1869; that he and his co-defendants, as sureties, executed the bond sued on, which is in the form required by law; that the tax books for the years 1869-70, and the delinquent tax lists for the years 1864, 1865, 1866, 1867 and 1868, were placed in the hands of said Smith for collection, and that he collected on the same the sum of $105,579.46, $14,815.23 of which he failed to pay over and account for. Eor further breach it is assigned that defendant, Smith, collected on said tax books the said sum of $105,579.46, and failed to account for and pay over any part of it to said county. The cause, by change of venue, was transferred to the circuit court of Vernon county, in which court defendant, Smith, and the securities on the bond, filed separate answers. The answer of Smith’s co-defendants denied that the bond .sued on was their bond, also, that Smith had failed to perform the conditions thereof, and denied that Smith had collected any money for which he had not accounted. The statute of limitations of three years was set up in bar of plaintiff’s action. It was also alleged in the answer that Smith had fully settled, paid over and accounted to Bates county for all money ever collected by him for said county while collector, and had been fully discharged and received a quietus for the same; that one of Baid settlements was made in December, 1869 ; that he paid the amount found due at that time into the county treasury, and received from the clerk of the county court a full quietus, upon his producing and filing with said clerk the the treasurer’s receipt. It also alleged that another and final settlement was made by said Smith with the county court of said county on the 13th of February, and 22nd and 23rd days of March, 1871, after said Smith’s time as sheriff and collector had expired, and after the election and
Plaintiff, in the replication, denied all allegations in regard to the settlements and payment of money found to be due. By failing to deny, it admitted that defendant had received each quietus referred to in the answer. The replication set up that of the amount ascertained to be due on said settlement, said Smith failed to pay into the county treasury the sum of $4,088.09; that defendant, Smith, collected of the county fund-of said county $8,973.87; of the road fund, the sum of $2,225.10; of the school fund, $2,096.07; of the bridge fund, $576.42, and of the court house fund, $943.77, all of which he failed to account for and pay over to the county; that in the said settlements said sums were not included, and were either fraudulently excluded or by mistake omitted from said settlement. It is also charged in the replication’that at the settlement made in March, 1871, defendant, Smith, made an exhibit and assumed to account for all moneys received by him, and represented to the court that the settlement was in full of all money by him collected for said county, which representations were false; that said court was deceived by said false accounting, and by mistake failed to find the items aforesaid due the county, and through said false, 'fraudulent or mistaken settlements, .the quietus was ob
The action of the court sustaining defendant’s motion to strike out those parts of the replication which set up new matter in avoidance of the settlements of the collector, is the error complained of.- The settlements made by the collector, and the various receipts, acquittances or quieti of the treasurer held by him, were set up in defendant’s answer in bar of plaintiff’s right to recover on the bond. To avoid this defense, this new matter pleaded in the answer, the replication of plaintiff charged that said settlements were erroneous, and were made through fraud or mistake, and the distinct charge is made that various sums of money, belonging and due to the different funds of the county, had been collected by defendant, and had not, either through fraud or mistake, been accounted for in said settlements, and that the sum of $4,088.09, found to be due on the settlement that was made, had not been paid over by said collector. We are at a loss to perceive on what principle this part of the reply was stricken out, unless upon the idea that the settlements made by the collector with the county court were judgments, and for that reason could not be assailed or attacked, except in a direct proceeding in chancery to vacate and set them aside for fraud or mistake. This must have been the theory adopted by the court in sustaining defendant’s motion, and if so, it was erroneous, for the case of The State to the use of Carroll County v. Roberts, 60 Mo. 402, completely overthrows it.
The objection which is made that the replication does not state with sufficient clearness the nature of the errors contained in the settlements, or whether they were procured to be made by fraud alone, or mistake alone, or both, is too technical to receive consideration, as well as the objection that the charge should have been made in the petition and not in the replication.
It is, however, argued that, as plaintiff', after the action of the court in striking out parts of the replication, refused to introduce any evidence, and the court rendered judgment for defendants on the pleadings, he thereby abandoned his case, and his action was equivalent to submitting to a voluntary non-suit, and that therefore he cannot be heard to complain in this court. It is true that when parties volun
Judgment reversed and cause remanded, in which the other Judges concur. Reversed. .