91 Mo. 172 | Mo. | 1886
Action on bond of J. S. Alsup, formerly collector of Douglas county. He being dead, this isuit was brought in the circuit court of Douglas county
The defendants asked the following declarations of law:
“1. That unless Collector Alsup was a defaulter, he was entitled to commissions on his collections ; and, if Ms payments, together with his commissions thereon, equal or exceed his liability on the bond of 1877- 78, he is not a defaulter, and is entitled to have his commissions allowed.”
“2. That the settlement of Collector Alsup with the county court, on nineteenth of January, 1877, for the term of 1875-76, in which a balance was found of $889.71 against him, and the judgment of this court on said bond for said term in said sum of $889.71, and the payment thereof, are conclusive of the liabilities and payments on said term and bond, and all liabilities of said collector accruing after said nineteenth of-January, 1877, from tax-books, back tax-books, and delinquent lists, and all collections thereafter made, are chargeable wholly and only to the second term and on the*176 second bond; and all payments made after January 19, 1877, are properly credited to the term and bond of 1877- 78.”
Which the court refused to give. Under the law, the collector was allowed to retain his commissions. Acts 1877, p. 253, sec. 1; Ib., p. 389, sec. 1; Ib., p. 382, sec. 16. If, as appears to be the case, Alsup -was not a defaulter on his bond for his last term, he was entitled to his commissions.
'With one exception, I see no objection to the second declaration of law. A party suing is not allowed to split his cause of action ; and even if he were, the sureties on the second bond would be liable only for the collector’s delinquency on such bond, and, prima facie, the suit on the first bond would settle all matters then existing between the parties then litigant. Under the ruling made in Hickerson v. City of Mexico, 58 Mo. 61, it is competent to show, by parol, that certain matters, apparently included in a judgment, were not then adjudicated ; but, certainly, the burden of showing this lies on the party asserting it, so that, under the case just cited, the judgment rendered in the first instance was not conclusive, unless it should appear that the matter claimed to be res judicata was properly in issue in the former trial, and necessarily involved in its determination. But in no event can I see how the sureties in the second bond are, in any way, liable for former delinquencies and, certainly, if collections were made and paid over during their term, they should have the benefit while they have to bear the burden. Manifestly, their responsibility cannot be extended to a period anterior to the time when they signed the bond in suit, nor can they be precluded from availing themselves of all payments made by their principal, which, in strictness, should have gone to lessen their liability.
An exception was made by defendants to the referees charging Alsup with the road tax to the amount
The judgment will be reversed and the cause remanded.