State ex rel. Worth County v. Patton

Fagg, Judge, delivered the opinion of the court. This suit was instituted in the Circuit Court of Worth county, against the respondents, upon the official bond of John Patton, collector of that county, for a failure to pay over certain moneys collected by him, and which belonged to the county as a part of its revenue. The cause was determined in the Circuit Court upon a demurrer to the petition, and thence taken by appeal to the Fifth District Court, where the judgment was affirmed, and it now comes here by appeal. Passing over any question that might arise upon the form of the judgment rendered by the Circuit Court, we proceed to consider directly the points raised by the demurrer. Three causes of demurrer are assigned. 1. That the facts set out did not constitute a cause of action; and the other two being substantially the same, and referring to the form of the suit by alleging that there was a defect of parties. The petition, after setting out the bond, proceeds to charge the collector Patton with the collection of a certain amount of money belonging both to the State and county revenue, between the dates of March 28, 1861, and the 1st day of May, 1862, “ as shown by a settlement with the County Court of said county” at the June term following. Now, evidently the material part of this allegation is that so much of the revenue with which he ought to be charged for that year had actually been received by him before the date of his settlement, and the discrepancy between the dates stated and the time fixed by law for the delivery of the books to him is a matter of no great consequence. The substantial part of the averment is that this amount of money was in his hands, as shown by his own settlement. The further averments in the petition show that this amount, together with others received upon different accounts, made up a sum of $407.16, which he had wholly failed to pay over or account for in the manner required by law, and that the said sum was then due the plaintiff. This certainly is the statement of a cause of action. It is admitted that so much of the statement as referred to revenue belonging to the State was improperly incorporated in the petition. Enough appears in the [534] body of it to show the object of the suit, as well as the real party for whose use and benefit it was prosecuted. This is a substantial compliance with the rules of pleading as recognized by the former decisions of this court. (State v. Matson, 38 Mo. 489.) There is much in the petition that ought to have been treated as mere surplusage, but the proper steps were not taken to reach such an objection. The want of a proper statement of the parties in the caption of the petition is not fatal where it is supplied in the body of the pleading by a substantial averment showing the capacity of the plaintiff to sue and recover upon the cause of action stated. (See authorities above cited.) The judgment of the District Court will therefore bo reversed and the cause remanded to the Circuit Court of Worth county for further trial. Judge Wagner concurs.