23 Mo. App. 290 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This cause was heretofore before this court, and its opinion on the former appeal is reported, in 19 Mo. App. 560. When the cause was remanded, the plaintiff with'drew its demurrers to the defendants’ answers, setting up the statute of three years limitation, and filed a general reply to such answers.
The following facts appeared in evidence on the retrial of the cause. The defendant, Finn, was elected sheriff of the city of St. Louis for a term of two years in November, 1878. On the twenty-first of November, 1878,
In December, 1878, the plaintiff instituted suit by attachment, and caused the writ of attachment to be levied on certain personal property, which was subsequently by order of court sold by Finn as sheriff. On the fourth of January, 1879, Finn made his report of sale under this', order, but did not pay the money into court, not being ordered so to do. The amount realized was $2,l%2.Vi. The controversy in the attachment proceeding was not terminated until 1883. In that year, and while the cause was still pending in the supreme court, the parties compromised the litigation, and as part of such compromise, the proceeds of the attachment sale were assigned to the plaintiff. The plaintiff thereupon, on the fourth of June, 1883, obtained an order of court directing the sheriff to pay such proceeds to him. November 30, 1883, E. T. Farish, attorney in fact for the sureties, did pay to the plaintiff on this claim three hundred and fifty dollars out of fees earned by sheriff Finn during his official term, which had been assigned to him for the benefit of the sureties. No part of the balance was ever paid. The present action was instituted September 20, 1884, and within three years after the plaintiff became entitled to the fund by assignment.
There was evidence tending to show that Finn had converted the money in controversy to his own use, prior ' to November 29, 1879, the date of the bond sued upon in this action.
This being all the evidence the trial court instructed
The defendant sureties contend, that they became by the terms of the bond responsible only for such defaults of their principal as occurred thereafter, and not for his defaults during his entire official term, and that the evidence tending to show that the default occurred prior to the date of the bond, should have been submitted to the jury. This view is not tenable. The bond .sued upon by its terms purports to take the place of the bond originally given, which, for some reason not disclosed by the record, was deemed insufficient.
Where an officer proves a defaulter and has held the ■office under different appointments, with several sets of sureties, it is now settled that those sureties alone will be responsible who were on the bond at the time when the defalcation occurred. Draffin v. Boonville, 8 Mo. 395 ; The State v. Smith, 26 Mo. 226, 231; The State to use v. Atherton, 40 Mo. 209, 220; The State to use v. McCormack, 50 Mo. 570. This, in the absence of a contrary intention, is the law even where the bonds are successive bonds under the same appointment. Smith v. Paul’s Ex., 21 Mo. 51. But in this case the bonds were given under the same appointment, and the contrary intention • is manifest by the terms of the bond. The bond was to .stand in lieu, or in place of the bond formerly given, and rendered the sureties responsible for the sheriff’s conduct during his entire official term.
A question of greater difficulty is presented by the interposition of the special statute of limitations. It is conceded that a cause of action against a sheriff and his .sureties for misconduct, such as is herein complained of, is barred by limitation unless the action is commenced within three years after its cause accrued. The default ■complained of is the default of the sheriff to pay over the money to the plaintiff when ordered so to do by the court, and the plaintiff contends that the action accrued
In the present case the officer did make a return in due time, and there was no order of court touching the disposition of the funds until June 4, 1883. — -
The defendants contend that the cause of action accrued when the sheriff made his return showing what funds were in his hands, and claim that the point is thus decided by the ruling of this court and of the supreme court in analogous cases of sales on execution and in partition. The State ex rel. v. Minor, 44 Mo. 373 ; Kirk v. Sportsman, 48 Mo. 383 ; The State ex rel. v. Lidwell, 11 Mo. App. 567. There is, however, a marked difference between the two cases. In the latter the execution creditor, or the distributee in partition, has a vested interest in the fund, which gives him a right in one case to demand its immediate payment to him, and in the other to intervene at once for its protection. It is not so in attachment proceedings. The interest of parties to the attachment suit is contingent upon the termination of thh controversy. Suppose the plaintiff in the present proceeding had sued the sheriff for a conversion of the fund, prior to any adjudication that he was entitled to it, will it be contended that he could have recovered, if at all, substantial damages %
It ha.s been held in Maine, in an action against a sheriff, for taking insufficient security in a replevin bond, that the statute began to run in the sheriff’s favor only from the date of the'final judgment in the
In analogy with the.se cases we must hold that the plaintiffs’ cause of action in this case did not accrue until the controversy, touching the ownership of the funds realized by the sheriff on attachment sale, was terminated. It is conceded that that was not terminated until Í883, and within three years -prior to the institution of this suit. The facts, therefore, fail to support the plea of the statute and this point also must be ruled against the defendants.
The views taken by us on the points above stated, dispense with the necessity of passing on the effect of the alleged part payment made by the attorney of the sureties in November, 1883.
All the judges concurring the judgment is affirmed.
