State ex rel. Smith v. Paul's, 21 Mo. 51

State ex rel. Smith v. Paul's

21 Mo. 51 | Mo. | 1855

Scott, Judge,

delivered the opinion of the court.

The words of the statute conferring jurisdiction on the county courts, are sufficiently comprehensive to embrace the subject of this suit. The words are, “that the county court shall have jurisdiction to hear and determine all demands against any estate,” &c. More comprehensive language could scarcely have been employed. The objection to an action in the county court on a bond with a collateral condition, growing out of the nature of the judgment required by law to be entered in such suits, is more specious than solid. In actions conducted according to the course of the common law, a judgment for the penalty was the logical result from a finding of the issue on a breach for the plaintiff. But as all formal pleadings are disregarded in legal proceedings in the county court, no order is disturbed, nor inconvenience produced, in regarding the dama7 ges assessed as the sum for which judgment should be rendered. In the case of Jewett v. Weaver's Adm'r, 10 Mo. Rep. 234, this court held that an action on a bond, with collateral condition, might be maintained in the county court.

We do not see that the defendant has been prejudiced by the records of the Probate Court used in evidence. If there was any thing in other records paralyzing the effect of those read, the defendant has the benefit of them. It was not necessary, in order to make the settlements evidence, that a record of the whole administration should have been produced. The plaintiff could obtain no advantage by introducing only a portion of the record of the settlements. The whole, when produced, *56though by the opposite party, would have the same effect as if introduced at once.

There is nothing in the act of March 3d, 1851, concerning “Probate Courts, executors, administrators, guardians and curators,” (R. C. 1845, p. 209,) which effects this proceeding. The remedy therein given is merely cumulative, and does not take away the action on the bond.

The plaintiff has brought her action without any reliance upon the final settlement. Indeed, that settlement was made under another bond than that on which this suit is instituted, and under which Rene Paul was not liable. The record shows that the default for which this action is brought, did not occur whilst Rene Paul was surety. Nothing more appearing, that is,the legal effect of it. Prom the face of the papers, the surety in the last bond is chargeable with the money sought to be recovered in this suit. Now, as the plaintiff has waived her action on the last bond, and the settlement under it, there is no hardship in imposing on her the burden of the proof that would have exculpated the surety in that bond. She must show that her money was wasted by her curator, whilst Paul was the security. As the law will not presume a default or wrong in the curator, nothing more appearing, the presumption is, that the money was in his hands at the time the last bond was entered into, and, consequently, that Paul, the surety in the first bond, was discharged. In the case of Farrar & Brown v. United States, (5 Pet.) the sureties of the surveyor general executed a bond, in the penalty of $30,000, conditioned for the faithful discharge of the duties of that officer. Before the execution of the bond, a large sum of money had been placed in the hands of the surveyor. In an action on the bond, the Supreme Court of the United States held that the sureties might show that the money was spent by the surveyor before the bond was executed. So here, the surety in the last bond, nothing more appearing, would be liable for the balance found in the hands of the curator at the last settlement. But the plaintiff, waiving the benefit of this presumption against the last *57surety, as sbe bad a right to do, has assumed that there was no money in the hands of her curator at the time of the last bond and settlement. Then she must make good her assumption, and show that her curator spent her money whilst Paul was her surety. This is the legal effect of the record as presented, and its force can not be broken by reading only parts of it.

The neglect of Beckwith, the curator, to make a settlement in 1851, was evidence in the cause, as it showed a breach of the condition of the bond, which breach was a part of the cause of action. So was the failure to pay the $500, and for the same reason. But these circumstances, whilst they might have been considered by the jury in determining whether the money was spent during the time that Paul was surety, were not of themselves sufficient to establish that fact. And on no principle could their establishment by proof throw on the defendant the burden of showing that the money was not made way with while his testator, Paul, was the surety.

The instruction given for the plaintiff was erroneous, and the judgment will be reversed, and the cause remanded, with the concurrence of the other judges.