State ex rel. Catron v. Ennis

79 Mo. App. 12 | Mo. Ct. App. | 1899

SMITH, P. J.

The relator is the administrator do bonis non of the estate of Abigail France, deceased.

In November, 1888, the defendant Ennis was elected public administrator of the county of Bates for a term of four years. The other defendants were sureties on his bond as such public administrator.

In the month of August, 1891, the probate court of said county of Bates ordered into the custody of the said defendant Ennis, as public administrator, the personal estate of the said Abigail France, deceased; that he collected and received into his possession assets belonging to said estate of the value of $346, which he failed to account for or turn over as required by law- and the conditions of his said bond, but on the contrary appropriated and converted the same to his own use. This action against him and the sureties on his bond was not commenced until the lapse of three years after the conversion took place.

The question which was raised in the court below by the demurrer to the petition, and is now presented for our determination, is, whether the three years’ limitation provided by section 6776, Revised Statutes, is applicable, for if so the •demurrer was improperly overruled by the circuit court. It will be observed that the section of the statute just referred to requires that an action against a sheriff, coroner or other officer upon a liability incurred by the doing óf an act in his official capacity and in virtue of his office or by the omission of an official duty including the non-payment of money collected upon execution, or otherwise, shall be commenced within three years after the cause of action accrues.

In suits against a private administrator on Ms bond the ten year statute of limitations is applicable. Martin v. Knapp, 45 Mo. 48. Section 300, Revised Statutes, provides that, in addition to the provisions of article XV, chapter 1, Revised Statutes, a public administrator shall have the same powers as are conferred upon, and be subject to the same duties, penalties, provisions and proceedings as are enjoined upon and authorized against administrators, etc., by said chapter 1, so far as the same may be applicable. This section of the statute, we think, places a public administrator as to his rights, duties and liabilities exactly on the same legal footing as an ordinary administrator. If but for this section a public administrator would fall within the class of officers to which sheriffs and coroners belong. It certainly withdraws him from the operation of said section 6776 and places him in that to which administrators, executors and guardians belong, and thereby renders applicable to him the ten year statute of limitations.

It can not be contended with any show of reason that an administrator, executor and guardian is included in the term “other officers,” nor does there appear to be any greater reason why a public administrator should be included in that term than an administrator, executor or guardian. The term thus employed in the statute no doubt refers to constables, marshals and such other officers as are invested by law with powers and duties similar to those of sheriffs and coroners, but we are unable to discover that there is any greater reason for including a public administrator within such designation than there is an administrator, executor or guardian. It is a familiar rule of statutory construction that where an enumeration of particular things is followed by a general word or phrase, the latter must be held to refer to things of the same kind as specified. Applying this rule to said section 6776 it becomes plain that the term “other officer” as therein used has no reference to a public administrator.

Our conclusion is that the three year statute of limitation is inapplicable to the case and that therefore the circuit court’ did not err in the action taken by it on the defendants’ demurrer.

The judgment will be affirmed.

All concur.