*1 Sigrist, Osage 139, v. S. Co. Investment Missouri: 403; but our hold 101, Mo. S. 39, Cady, v. Chilton cases, Supreme by the decided ing following conflict with 262 S. W. Myrick Booten, 304 Court of Missouri: v. Osage W. 30. The cases of Dent, 308 274 S. Coal Co. v. that the Cady, supra, v. Sigrist Chilton v. hold Investment year filing set default period motion to aside a three limitation stat quiet a section judgment applies in suit to title under Missouri, 1929, Statutes utes, Revised Section now supra, Dent, hold Myrick Booten Coal Co. while the cases of 1528, Revised year Section applies provided in period that the two to the Missouri, is certified 1929. Statutes of Therefore that the law clarified Supreme end Court actions. bar in unified, guidance bench and future Fulbright, JJ., Smith and concur. M. Respondent, v. Cen Wilkinson, rel. and to Use Appellant. 112 S.W. Corp., tral & Insurance

607. Appeals. 1937. December

Kansas Court of *2 respondent. Bussell Garnett Bellamy, William T. and Lynn McGune, Downing appellant; Caldwell & A. and Webb.for n '; - (cid:127) Lamkin James counsel. SPERRY, brought by an indemnity plaintiff, C. This was .suit M. Surety, S. Wilkinson, defendant, Insurance Central and Corporation. parties plaintiff, The and will be referred to herein-as appeals. From plaintiff, defendant. defendant Manning, Defendant was who awas notary public. Plaintiff Dreisbaeh, sold-certain property in settlement outstanding’ unpaid checks and accounts due :from plaintiff Dreisbaeh', presence-of to Dreisbaeh.' plaintiff,-filled - quitclaim deed, out a enumerating therein the articles sold and citing that the consideration therefor The name- of was one dollar. grantee therein, Dreisbaeh, inserted, as was not supposed as - named-, thought but, grantee and it was, instead, therein was Wilkinson, one having Wilbur name surreptitiously such either -Dreisbaeh, inserted at drawn-.by time bill of sale was person used, in the 'blank space, provided-in inserted the form at a 1935,-at later date. This transaction occurred March Warrens- burg, date, Missouri, and, on Dreisbaeh. presented in- this strument Manning told him that he personally and saw plaintiff sign it, Manning' following, executed the signed Notary Public, and which seal, attached-his official to^ n wit: “ (Notary Seal) Manning “Verne C.

“Notary Public, Jackson County, Mo. through line

“Erase or draw this clause not needfed.

“(The following appears on back paper:)

“State County Jackson. March, 23 day “On this A. D. before me ap- personally peared M. R. S. Wilkinson L. Cameron , and ... his:wife n - me known to persons described in ánd executed the foregoing instrument, acknowledged executed the same as their free and deed. affixed "Whereof, my hereunto set hand Testimony “In year first day my my at. office seal, in Kansas above written. expire on the “My Notary day will commission Public

n Sept.,1937. Manning, “Verne C. “Notary Public.” presented bill sale Dreisbach Some thereafter months complaint again'st plaintiff Attorney a verified "Prosecuting and filed certain issuance of checks to Dreis- charging with the unlawful deposit not have sufficient funds on when time bach Prosecuting Attorney relied on pay same. The the bank to charge on said against plaintiff based sale filed more plaintiff Dreisbach bebn issued checks. These checks had up paid by the taken checks were *3 Plain- of sale. property mentioned of the and sale transfer This suit charge acquitted. was the criminal tiff was tried on on the followed. bond that, Dresisbaeh false to extent of sale was altho

The bill one M. S. the instrument that really purchaser, was recited Manning, and, the extent whereas grantee; also, to was Wilkinson plaintiff personally appeared before him certificate, that in his recited instrument, foregoing acknowledged that and “executed by deed,” the same their free act as is admitted executed appear personally Manning not before defendant that signature already that was thereto when time his affixed presented Manning. admits the instrument was first Plaintiff signature genuine signature. thereon is appearing that the his own prosecution, but action is not one malicious The stated for prosecution to conspiring and cause a malicious is for to induce one County. by Attorney of Johnson Plain- Prosecuting instituted given court, instruction, by by him tiff’s main submitted jury. quired TIis was finding by to that effect evidence directed proving contention. The answer admitted execution of every allegation petition. bond and denied contained argued only liable, bond, that defendant for its under improper Manning capacity Notary Public; acts his as official acts, liable private that it is not his such as a con- bring spiracy to an institution of unlawful and groundless except prosecution, so far brought about or prosecution, about; such a bring contributed plaintiff’s only and that the question evidence of witness on notary’s whether or not the official certificate and seal caused the prosecution, it, positively proves that contributed it did not do so. indemnity be notary’s A is in the nature a contract of damage by rea suffer persons

tween bondsmen and all ex rel. (State the official neglect, son of the misconduct of fraud or Thompson surety is al., 556); c. et and the Ogden and liable acts ex rel. v. notary. of the [State Where York, Company American New 39.] negligence suit is one violation official, based nominal support the condition of will the bond unless it shown was the that such violation al., cause of et damages. substantial v. Packard [State 53; (K. C.), Mo. App. Indemnity rel. et State ex v. Globe al. Co. et (2d) al.,

S. W. Indemnity v. Globe rel. l. c. 737.] Prosecuting deposition Plaintiff introduced in evidence the of the Attorney prove that official County, of Johnson in an effort relied whether or determining false charges plaintiff; file would charges mislead said certificate had and would filed false testified certificate not been The attached thereto. witness deposition, by plaintiff taken introduced, that:

“A. I think question. I have I answered stated borne why could see no reason the course of events would been in any way. have altered

“Q. you say You why could see no reason course of events have would you any way. you not, mean, altered You do A. prosecution just you instituted the Cer- did? tainly. “Q. As lawyer, Cooper, Mr. ac- you course that an knew *4 knowledgment conveyance on of was property in Missouri way in no to the validity yes, ? Oh, instrument A. I knew that.

'“Q. acknowledgment the fact that Was was there what you true, convinced instrument or wa§ the fact that signed instrument? A. I relied the instrument because signature there. was

“Q. signature? A. M. What S. Wilkinson. say I could not signature. seal I me, convinced because knew his seen it on checks.” . . . seen that prosecuting will be attorney flatly Thus testified placing act Manning it was not the in seal on prosecute but, plaintiff, to sale he acted as he signature thereon recognized because of did he Appeals, Louis genuine. The St. Court in

to be State ex rel. v. 549, App. 555, quoted l. c. Thompson, approval 81 Mo. the fol only testimony the purchase lowing: to “The note was

752 Keating was she the estate by the’ delivered relator. As within fact, being peculiarly incompetent testify this obligors in surviving knowledge not known to

her was the -fact proof of 468), (Fulkerson Thornton, 68 Mo. v. the case In proper.” was to the estate essential, the nonsuit as within “peculiarly was he testified about which bar the matter es sought be The fact prosecuting-attorney. knowledge” of the ' being evi His evidence only by known him. tablished was the-owk/ he bound being by direct-point, offered on - dence 519, l. 93 Maddox, App. 515, c. in by it. We held Raw v. case cannot necessary link in chain of a (2d) 282, that a S. directly contrary evidence drawing conclusion by a proved respondent’s witness, where party, the adverse who testified as certainly falls point.-- This evidence situation was the on- question of that a pointed within that rule. also out filing lawyer, -prosecution whether a skilled here, certifi influenced cases;-as witness would be was the false re on an instrument which did not cate, appearing or it, quire witness is one which a'certificate order validate lay jury composed accurately more' than- could could answer person attorney prosecuting men. Without evidence from spoke, “expert” he or some ally knew whereof at least evidence necessarily source, jury in' morass' of rove about brought question speculation actually of-what doubt and Roseberry, 600, l. prosecution. [Pedigo v. S. W. c. 606.] sought testimony 'Plaintiff effect of the to minimize the above statement, offering parte evidence an unsworn and undated signature purporting to bear the of the same witness. This offer rejected properly by the trial court. Plaintiff could “surprised” “entrapped” by any or deposition been witness whose introduced, knew, advance, every himself state weeks deposition (White v. Missouri Motors Dis ment contained tributing said 453, (K. C.); (2d) 245) ; l. c. S. W. party “entrapped surprised” it is when aiid has permitted impeach Joseph he' own witness. [Dauber (K. Gallagher C.), Mo. App. son l. c. v. Schutte Lum Co., 273 S. W. ber c. Plaintiff is the evidence bound 221.] Brooks, point. of the witness on this [Schroer 53.] necessarily From what has been follows that since the exe- cution of the notarial seal contribute not-cause or *5 cause, the charges institution of the criminal against plaintiff,- no damage substantial to him accrued reason the of of breach con- the Consequently the ditions of bond. case the would have re- to be Packard, (State and supra)) versed remanded rel. v. were it not necessary, that plaintiff’s contention it is not for case bottomed directly were on conspiracy fraud to show that the to have proximately particular official act shown the of complained the act performed notary. says by the in effect He Manning; of part on the negligent, fraudulent, was not but un- an course of by Manning the was an official act committed bring the conspiracy Dreisbach lawful between the latter and prosecution plaintiff. malicious of arrest and Ogden and eases State ex rel. v. reading

From a careful of the Packard, supra, s-upra, American Company, court, Judge vras the au- appear it would Trimble of this opinions, cases thor of both of said made some distinction between negligent notary, the resting of the and those on bottomed act ' case, However, act such an official. former altho in the fraiodulent notary, yet part act was fraudulent of the and intentional on the seal'and-certification, act, affixing ivas of the notarial money; direct cause of the latter parting relator negligent complained loss, ease act not cause representations lator there relied and made to him acted certificate, bar, notary, which, of the and not as in case necessary validity was not of the no played part instrument and loss. actual language What was meant in the two. used cases part where there is notary, fraud on the of the act official if notary either caused the no it, loss matter how contributed remotely, the bondsman is liable actual full amount Packard, loss. In State ex rel. v. App. l. c. the fol lowing language “Consequently, notary’s is used can proximately be said to have caused the even loss relator did if rely on said certificate to signer assure him that the of the note got was man signed ours.) (Italics others.” Ogden And in State ex rel. v. Surety Company, American ‘‘ True, the surety said: is liable notary, . acts of the . . The fraudulent therefore, merely was not one of the letting go of his causes of his money. thereof, was the efficient cause and, it be fraud, proven proximate a case ivas to be a cause loss. For, though . . . the official fraudulent of the be ac act companied by other acts assisting loss, in the production yet sequence if there is a natural and continuous from such fraudulent result, and, for that act, but the result happened, cause, then such act is the proximate and cause though the result .joined even another have arisen (Italics ours.) the result.” producing And, on page thereof, official,act was not is said: “His fraudulent absolutely neces sary money, and therefore was to obtain loss, but it and not remote cause thereof if it were necessary *6 transac- into

to show in a enters a ease like this. "When fraud the act from throughout reaches permeates tion it taints it from damages arising consequence. resulting case, In this to through undoubtedly reached the fraudulent official act of the thereof and the cause the transaction to relator’s loss and was notary is not damages by the fraudulent official act caused Ogden damage from the acts of separable fraudulent individual.” as an flatly where Ogden case, supra, the court hold that

In the does charged a is the act is is fraudulent act it loss; probably is meant. proximate but is what authority rule If it is different than that laid down Packard, supra, the act case of State is this: Where later fraudulent, permeates of is the whole trans- complained fraud conclusively an extent that it will presumed action to such damages, fraudulent act was a no mat- such joined many produce other or circumstances ter how acts result, be; regardless may and that is so how remote fact nevertheless man- such fraudulent official act must contribute in some ner to the result. restating general regard

This is but de law in to fraud and ceit; holding but nowhere we a do case find one must made statement or committed some act which contributed to loss, damages. thorough order be liable for For a regard resume of the rule in Bungardt, see Cahn v. Reid 131-132-133-134; McClintock, Saunders v. App. 216, l. c. 224. We see awhy surety reason no sound in damages should be held liable for the official act fraudulent a notary act, unless directly or indirectly, proximately either remotely, damages causes or cause, contributes to complained single of. To otherwise be to hold out and make liable a state facts that has not been held to render liable principal in a for fraud case and deceit. v. Reid Bun [Cahn gardt, supra.]

Holding expressed the view herein we unnecessary deem it to de- termine not Manning whether or together conspired Dreisbaeh procure prosecution the arrest and of plaintiff; pass toor points appeal. in this raised

Where, here, there has been breach of the bond and substantial allowed, erroneously have been the judgment be re should the cause remanded with versed and directions to the trial court judgment plaintiff enter amount bond to be satisfied payment dollar, sum of one and costs „the judgment up of tender of date circuit court. [State Co., Indemnity Globe c. 737.] C., Campbell, ordered. concurs. is so C., adopted opinion foregoing PER CURIAM:—The Sperry, judgment and the cause opinion of the court. The is reversed as the for one to enter remanded with directions *7 concur. judges All of accruing prior to tender. costs dollar and C. B. Frank Nico ex rel. Norman Pitcairn Missouri Appel Railway Jr., Company, demus, of Wabash Receivers Respondent. lants, v. Public Service Commission 982. Appeals. December 1937. Kansas Court of notes than as promissory