9 Mo. App. 245 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This action is on a constable’s bond, against him and his sureties. The breach assigned is that the constable, having entered upon the duties of his office on November 3, 1874, and continued in the discharge of those duties until January 27, 1877, did during that period collect, as constable^ a large number of fees to which plaintiff’s relator, as justice of the peace, was entitled, and failed to pay them over, and converted them to his own use. Defendants demurred on the ground that the petition did not set forth facts sufficient to constitute a cause of action. The demurrer was sustained. Plaintiff declined further to plead, and judgment was entered accordingly.
It is alleged that the constable was elected in November, 1874. The law then in existence provides that the constable shall hold his office for two years, and until his successor be elected and qualified. Acts 1874, p. 54, sect. 1. The act of 1875 (p. 29, sect. 2) provides that “ all constables now in office in the county of St. Louis shall hold their respective offices until the next general election, to be holden in 1878, and until their successors are duly elected and qualified.” The Scheme,” which went into operation October 20, 1876, provides (sect. 15) that all
This action was brought on January 6, 1879. If the statute creates a bar by lapse of time, and the petition shows that the time has elapsed, the defence may be made by demurrer. Boyce v. Christy, 47 Mo. 70. The obligation of the sureties could not be extended by subsequent legislation. But the question is whether this has been done. When did the term for which the sureties were liable by their stipulation expire ? Besides the provision of the special law cited above, the general statutes in force at the date of this bond provide (Wag. Stats. 963, sect. 1) that “ all officers elected or appointed by authority of the laws of this State shall hold their offices until their successors are elected or appointed, commissioned, and qualified.” Of these provisions of law the sureties of Kurtzeborn were bound to take notice. They were a part of the contract. Under the special law of
The provisions of the Scheme, cited above, did not so change the office that Kurtzeborn would not have become really his own successor had he qualified after the expiration
The statute provides (Rev. Stats., sect. 647) that the bond of a constable shall be given within ten days ; but if the constable, as in the present case, becomes his own successor, the liability of the sureties does not cease at the end of this period of ten days, but continues, according to the terms of the contract, until the constable qualifies by giving bond for the new term, or until he resigns or is ousted for inability or failure to qualify according to law. 'Action may be brought upon a constable’s bond at any time within two years from the expiration of the time for which the constable was elected or appointed. The term of Kurtzeborn for which he was elected was two years from the November election in 1876, and such further period as should elapse till the qualification of his successor. As we have seen, by virtue of the statutory provision he was appointed his own successor, and continued to discharge his duties, according to the allegations admitted by the demurrer, for more than two months after the two years for which he was originally elected, and until January 27, 1877, during which period, as his successor had not qualified, the time or term for which he was originally elected still continued. This action being brought on January 6, 1879, was within the time of limitation fixed by statute. We think, therefore, that the demurrer ought to have been overruled.
The judgment is reversed and the cause remanded.