The State of Missouri to the use of Saline County v. Sappington et al., Plaintiffs in Error

Supreme Court of Missouri1878-10

68 Mo. 454

Summary · law.co

Holding. The judgment was affirmed. The court held that sureties on the original official bond remain liable notwithstanding execution of a subsequent bond, that the county had standing to bring the action as relator, and that the defendants waived any defect in the relator by failing to raise it via demurrer rather than answer.

The State of Missouri, on behalf of Saline County, sued county treasurer Sappington and his sureties on two official bonds totaling $30,000 that were executed to secure school fund money. The first bond was executed in 1868, and a second bond for an additional amount was required and executed in 1871. After Sappington left office, the county brought suit seeking to recover a shortage of approximately $3,115.71 in school funds, and the trial court ruled in the county's favor.

The defendants argued on appeal that they remained liable on the first bond despite execution of the second bond, and that the county lacked proper legal standing to bring the action. The court rejected both contentions. On the liability issue, the court reaffirmed prior precedent establishing that sureties on official bonds remain liable even after an additional bond is executed. On the standing issue, the court determined that the county was the proper party to bring suit as relator when the bonds were given to the State of Missouri, since the county serves as trustee of the school fund.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether sureties remain liable on an official bond after execution of an additional bond
Whether the county had legal standing to sue as relator on an official bond given to the State
Whether procedural defects in party designation must be raised by demurrer or are waived by answer

Procedural posture

The defendants in error appealed from a judgment rendered against them in the Saline circuit court for a deficit in school fund money on official bonds.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Sherwood, C. J.

Action instituted in the Saline circuit court against Sappington, late county treasurer of Saline county, and the other defendants ás his sureties upon an official bond for $20,000, executed November 12th, 1868. The bond was given to the State of Missouri for the safe keeping and disbursement of the school fund of Saline county, and was duly approved by the county court. On April the 4th, 1871, while Sappington was still county treasurer, the county court made an order requiring him as treasurer, to execute an additional bond for $10,000 for tbe safe keeping and disbursement of tbe school fund, which bond was filed by Sappington on April the 7th, 1871, with new securities, and duly approved by the county court. This suit was instituted by the county after Sappington went out of office, to recover $3,115.71 on the first bond, from him and his sureties, for an alleged deficit of that amount of school money, and judgment was rendered against defendants for that amount.

I. Relative to the point of defendants still continuing liable notwithstanding the execution of the second bond, we are still of the same mind as when deciding the case of the State ex rel. Saline Co. v. Sappington et al., 67 Mo. 529. That case is decisive of this, in respect to the point referred to. We, therefore, rule that point against the defendants.

II. In reference to the legal capacity of the relator to institute to its use the present action, we have this to say: The county of Saline is the trustee of an express trust in regard to all ordinai’y suits relating to the school fund of that county. Bonds, for instance, for money loaned,, are required to be executed to the county to the use of the township to which the fund belongs, 2 Wag. Stat., § 82, p. 1258; and if any suit be brought on such bond, it is brought in the name of the county to which it is executed. But when a suit, as in the present case, is brought on a bond of an official given to the State for the faithful observance of his duties toward the school fund, there the action lies in the name of the State, to which the. obligors have bound themselves, and the State is the trustee of an express trust. 2 Wag. Stat., § 3, p. 1000; Meier v. Lester, 21 Mo. 112. If it be true that suits on official bonds must be brought in the name of the State, it would seem of necessity to follow, that under the exigencies mentioned in 2 Wag. Stat., § 42, p. 1251, although the county clerk, or a freeholder, may prosecute a suit on the bond of the defaulting treasurer, yet it by no means follows that such suit could be prosecuted in the name of the clerk, or freeholder, in total disregard of all known formulas of proper procedure. It has been expressly ruled in this State that in a suit on a note payable to the county to the use of a school fund, such suit is properly brought in the name of the county; Barry Co. v. McGlothlin, 19 Mo. 307; and in Ray Co. v. Bentley, 49 Mo. 236, it is held that while the county is not the owner of the school fund, yet the title thereof is vested in the county in order to effectuate the policy of the law concerning the appropriation and disbursement of that fund. If this be so, then it would appear peculiarly appropriate that the county should be relator in all actions where the State is, of necessity, a party in consequence of being the obligee in bonds given for the faithful performance of the official duties of the county treasurer in reference to school funds.

III. But if we concede that Saline county was not the proper relator, still this concession does not aid the defendants, and for this reason : If defendants were desirous of testing the question, they should have stood on their demurrer, since the alleged defect was patent on the face of the petition, and could only be taken advantage of by demurrer, and not by answer. 2 Wag. Stat., §§ 6, 10, pp. 10, 14, 15. When, therefore, the demurrer was overruled and defendants answered, they waived and abandoned whatever vantage ground they may have acquired by demurring; Ware v. Johnson, 55 Mo. 500; and could not raise the same question anew in their answer, in respect to a defect of parties. These considerations induce the affirmance of the judgment.

All concur.

Affirmed.