State ex rel. Douglas County v. Alsup

Sherwood, J. Action on bond of J. S. Alsup, formerly collector of Douglas county. He being dead, this isuit was brought in the circuit court of Douglas county [175] against Ms administrator, and against Ms sureties on Ms second bond, and the cause was removed, by change of venue, to the Webster circuit court, where judgment, went on the bond, and execution was ordered to issue for the sum of $490.08. On settlement' with the county court, on the nineteenth day of January, 1877, by the collector for his first term, i. e., for the years 1875 and 1876, a balance was found against him of $889.71, and action being brought therefor against his administrator and the sureties on the first bond, judgment was recovered for that sum, and that judgment satisfied. The sureties on the second bond, the one now in suit, are not the same as those on the bond for the first term. The record in this cause is wonderfully confused, and the finding of the trial court is based on the action of the two referees, who differ as to the amount which should be allowed for the collector’s commissions, to the extent of $1,388.63. The defendants asked the following declarations of law: “1. That unless Collector Alsup was a defaulter, he was entitled to commissions on his collections ; and, if Ms payments, together with his commissions thereon, equal or exceed his liability on the bond of 1877- 78, he is not a defaulter, and is entitled to have his commissions allowed.” “2. That the settlement of Collector Alsup with the county court, on nineteenth of January, 1877, for the term of 1875-76, in which a balance was found of $889.71 against him, and the judgment of this court on said bond for said term in said sum of $889.71, and the payment thereof, are conclusive of the liabilities and payments on said term and bond, and all liabilities of said collector accruing after said nineteenth of-January, 1877, from tax-books, back tax-books, and delinquent lists, and all collections thereafter made, are chargeable wholly and only to the second term and on the [176] second bond; and all payments made after January 19, 1877, are properly credited to the term and bond of 1877- 78.” Which the court refused to give. Under the law, the collector was allowed to retain his commissions. Acts 1877, p. 253, sec. 1; Ib., p. 389, sec. 1; Ib., p. 382, sec. 16. If, as appears to be the case, Alsup -was not a defaulter on his bond for his last term, he was entitled to his commissions. 'With one exception, I see no objection to the second declaration of law. A party suing is not allowed to split his cause of action ; and even if he were, the sureties on the second bond would be liable only for the collector’s delinquency on such bond, and, prima facie, the suit on the first bond would settle all matters then existing between the parties then litigant. Under the ruling made in Hickerson v. City of Mexico, 58 Mo. 61, it is competent to show, by parol, that certain matters, apparently included in a judgment, were not then adjudicated ; but, certainly, the burden of showing this lies on the party asserting it, so that, under the case just cited, the judgment rendered in the first instance was not conclusive, unless it should appear that the matter claimed to be res judicata was properly in issue in the former trial, and necessarily involved in its determination. But in no event can I see how the sureties in the second bond are, in any way, liable for former delinquencies and, certainly, if collections were made and paid over during their term, they should have the benefit while they have to bear the burden. Manifestly, their responsibility cannot be extended to a period anterior to the time when they signed the bond in suit, nor can they be precluded from availing themselves of all payments made by their principal, which, in strictness, should have gone to lessen their liability. An exception was made by defendants to the referees charging Alsup with the road tax to the amount [177] of 8252.30. In this it is claimed the referees erred. Under the law, as it then existed, the road tax was levied and collected as the state and county taxes, with the proviso, however, that such tax could be paid in labor on public roads, receipts being given by the road overseer to those who worked out their tax, who, in turn, handed them to the collector as their, and his, voucher, and any money collected by the collector was also receipted for by the road overseers of the proper road districts, and all these receipts, of both kinds, were evidently designed to exonerate the collector, and to wipe out the charge against him on account of the road tax. The fact that he did not have to pay any money into court, on this score, does not signify. The judgment will be reversed and the cause remanded. All concur.