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1903, he gave bond, qualified and entered upon | the discharge of the duties of said office, and continued to hold the same until the 1st day of January, 1907. That during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and while the defendant was county clerk of said county, he wrongfully and without authority of law as such county clerk exacted and obtained from plaintiff the aggregate sum of $2,009.85, said aggregate sum being made up and composed of the following items, and in the manner following, to wit: That when the county court of said Putnam county ascertained that the defendant had wrongfully exacted, charged, obtained, and received from plaintiff the said several items above enumerated, amounting to the aggregate sum of $2,009.85, and had only paid back the sum of $418.86, leaving unpaid and due plaintiff the said sum of $1,590.99, the said court, by its order made on the 5th day of April, 1910, and during the February adjourned term, 1910, of said court, did order and direct the defendant to pay into the treasury of said county the sum of $1,590.99, so found by said county court to be due said county, and that the defendant having failed, refused, and neglected for more than 15 days after the making and delivery to him of a copy of said order to pay said sum of $1,590.99, or any part thereof, into the treasury of said County as required by law, the said county court, by its order entered of record on the 21st day of April, 1910, and during its said February adjourned term, 1910, ordered that an action be brought against the defendant for the said sum of $1,590.99, so found to be due plaintiff, and that the defendant has ever since failed and refused, and still fails and refuses, to pay the said sum of $1,590.99, or any part thereof, into the treasury of said county. Wherefore plaintiff prays judgment against the defendant for said sum of $1,590.99, with interest thereon, and for costs.

"For another and further cause of action, plaintiff says: That it is a political subdivision of the state of Missouri, and as such has authority to bring this suit. That, at the general election held in 1898, the defendant was elected county clerk of Putnam county, Mo., for a term of four years, and that on the 1st day of January, 1899, he gave bond, qualified and entered upon the discharge of the duties of his said office, and continued to hold the same until the 1st day of January, 1903. That, at the general election held in 1902, the defendant was again elected to the same office, and that on the 1st day of January, 1903, he gave bond, qualified and entered upon the discharge of the duties of said office, and continued to hold the same until the 1st day of January, 1907. That during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and while the defendant was county clerk of said Putnam county, he wrongfully and without authority of law exacted, charged, obtained, and received of and from plaintiff $2,009.85, of which amount defendant thereafter and before the bringing of this suit paid back to plaintiff the sum of $418.36, leaving the net amount so wrongfully exacted, charged, obtained, and received of and from the plaintiff by defendant and due plaintiff the sum of $1,590.99. That, when the county court of said Putnam county became possessed of the knowledge that the defendant was so wrongfully retaining the said sum of $1.590.99, the said court, by its order made on the 5th day of April, 1910, and during the February adjourned term, 1910, of said court, did order and direct the defendant to pay into the treasury of said county the said sum of $1,590.99, and that the defendant having failed and refused and neglected for more than 15 days after the making and delivery to him of a copy of said order to pay said sum of $1,590.99, or any part thereof, into the treasury of said county, as required by law. the said court, by its order entered of record on

said February adjourned term, 1910, ordered that an action be brought against the defendant for the said sum of $1,590.99, so found to be due plaintiff, and that the defendant has ever since failed and refused, and still fails and refuses, to pay the sum of $1,590.99, or any part thereof, into the treasury of said county. Wherefore plaintiff prays judgment against defendant for the sum of $1,590.99, with interest thereon, and for costs.

"For another and further cause of action plaintiff says: That in the month of January, 1900, the defendant became the agent of the plaintiff, and remained such agent during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and that during said time the defendant received, as agent for plaintiff, the sum of $2,009.85, and of said amount paid back to plaintiff the sum of $418.86, but retained in his possession the sum of $1,590.99, and that, although the plaintiff has often demanded of defendant the said sum of $1,590.99, rightly due from defendant to plaintiff, yet defendant has refused and still refuses to pay plaintiff the said sum of $1,590.99, or any part thereof. Wherefore plaintiff prays judgment against defendant for the sum of $1,590.99, with interest, and for costs.

"For another and further cause of action plaintiff says: That during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906 defendant, at the county of Putnam, Mo., received the sum of $2,009.85 from plaintiff, as its agent, for the use of plaintiff. That of said sum defendant has paid back to plaintiff the sum of $418.86, leaving still due plaintiff the sum of $1,590.99. That thereafter, to wit, on the 5th day of April, 1910, plaintiff demanded payment thereof from defendant, but that defendant has not paid to plaintiff the said sum of $1,590.99, or any part thereof. Wherefore plaintiff prays judgment against defendant for $1,590.99, with interest and costs of suit."

The items pleaded, but not set out in the foregoing, will be more particularly noted later, if they become material. To this petition the defendant interposed the following demurrer:

"Comes now the defendant and demurs to plaintiff's petition and to each count thereof: For the reason that the same do not state facts sufficient to constitute a cause of action against him, under the laws of this state. For the further reason that there is a defect of parties plaintiff; the petition showing on its face that a part of the count sued for, if owing, belongs to the state of Missouri and not to plaintiff. And because the claim on which the suit is based, as set forth in said petition and the several counts thereof, is barred by the three years' statute of limitations, and also by the five years' statute of limitations. Wherefore defendant asks that this his demurrer to plaintiff's third amended petition be sustained, and that he be discharged from further answering in the above-entitled

cause."

The issues are therefore purely issues of law.

[1, 2] I. This judgment will have to be reversed, and the cause remanded, but the reason for so doing should be fully discussed, in view of the peculiar wording of the petition in the third and fourth counts thereof, and in further view of the fact that there must be a retrial. The judgment upon the demurrer will have to be reversed, because both the third and fourth counts in this petition state good causes of action for money had and received. Not only so, but upon their

of limitations is the only one which could be invoked as to them, and it could not be successfully invoked. These counts in the petition do not proceed upon the theory of the defendant having been an official, and having received the money sued for "in virtue of his office," as contemplated by R. S. 1909, § 1890, the three years' statute of limitation. These counts charge that the defendant received these funds as the agent of the county, not as an officer of the county. What the proof may show upon trial is one thing, and what the petition shows, when attacked by demurrer, is quite a different thing. It may be that the proof will utterly destroy the allegations of these two counts, but that is a matter to be determined upon the trial of the facts, rather than upon this demurrer. It is not uncommon for county officers to be agents of the county for matters beyond those of the office. Whether the facts will so show in this case, we have no means of knowing. We only know that defendant is alleged to have received the funds as agent. For this reason the demurrer was not well taken as to these two counts, and for like reason the instant judgment will have to be reversed.

[3, 4] II. What we have just ruled would dispose of this case, but for the fact a trial nisi must be had, and the other questions involved should be ruled upon in view of that fact. It is stated in the brief that the trial court was of the opinion that the whole petition (and all the counts thereof) was directed against the defendant as an official (i. e., as county clerk), and that the cause of action in each count was barred by the three years' statute of limitations, supra. We have pointed out the error of this ruling in so far as the third and fourth counts of the petition are concerned. Such counts were not drawn upon that idea. The first and second counts are different, however. The question now material is whether these counts state a cause of action which is barred by the threeyear statute. Plaintiff says not, and defendant contra. The statute (R. S. 1909, § 1890) reads:

"Within three years: First, an action against a sheriff, coroner or other officer, upon a liability incurred by doing of an act in his official capacity and in virtue of his office, or by the omission of any official duty, including the nonpayment of money collected upon an execution or otherwise; second, an action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state."

This question requires a statement of the items sued for in the count named, to the end that we may see whether or not they fall within this statute. These items, fully set out in the first count of the petition, are as follows:

words and figures for each name appearing thereon, the proper and correct basis as shown by actual count.

"Item II. The sum of $78.11, being the amount wrongfully charged, exacted, and retained as back salary for previous years, and to which the defendant was not entitled.

"Item III. The sum of $99.99, being the amount wrongfully charged, exacted, and retained for three months' salary of $33.33 each, in excess of what could be legally charged from the time served, and to which the defendant was

not entitled.

"Item I. The sum of $1,306.91, being the amount wrongfully exacted and obtained from said county and charged for making out and computing the tax books; the defendant having wrongfully charged said county on a basis of 65 words and figures for each name on said tax books, instead of charging on a basis of 40

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"Item VII. The sum of $169.15, being total excess erroneous earnings on revenue and misup of the sum of $260.57, wrongfully charged, cellaneous services, the said amount being made exacted, and received from plaintiff for 26,057 words and figures falsely reported as in tax books, and being 26,057 words and figures in excess of the true number of words and figures in said tax books, and the further sum of $3.75 wrongfully charged, exacted, and received for commissioners' orders, making a total of $264.32, and from which should be deducted the sum of $95.17 paid back by defendant, and leaving an excess overcharge of $169.15, said several items aggregating the total sum of $2,009.85, so wrongfully exacted, charged, obtained, and received from plaintiff as aforesaid, and of which said aggregate amount the defendant thereafter, and before the bringing of this suit, paid back to plaintiff the sum of $418.26, leaving the net amount so wrongfully exacted, charged, obtained, and received by defendant, and due plaintiff, the sum of $1,590.99."

More than three years had elapsed, and if these items come within the purview of the statute above quoted, and such statute has not in some way been tolled under the facts pleaded, then the demurrer was properly sustained as to these counts. Plaintiff urges in the brief that these items were not received by the defendant "in virtue of his office," but that they were fraudulently received. To the one class of cases the three-year statute applies, whilst as to the other the five-year statute would apply.

We have fully set out the petition. The wording of it is not such as to justify us in saying that the actions in the first and second counts of the petition stated are grounded upon fraud. If this was the view of the pleader, then he failed to allege facts sufficient to state a cause of action. Shelby Co. v. Bragg, 135 Mo. 291, 36 S. W. 600. In the Bragg Case, Macfarlane, J., said:

"It cannot be said that the evidence of the facts constituting plaintiff's cause of action was concealed or suppressed. The evidence all existed upon the official books and records of the office open to the examination of the court. The expert accountants, who afterward made an examination, encountered no difficulties in making an account of fees collected. They reported no destruction of books or the suppression or concealment of no fact which could prevent an

accurate statement being made. It is insisted that the duty of this officer and his relation to the county court was such that the latter had the right to rely implicitly on the correctness of these statements, and that making a statement which did not fully and truthfully account for all fees collected is such a fraudulent conceal

ment of the facts as would delay the running of the statute. But the county court is required to examine the statements and see that they are correct before approving them; it was not intended that they should accept as true any statement the officer should make. The evidence by which the truth could have been ascertained was at hand and open to their examination. Indeed, the statements themselves did not all purport to be accurate; they do not pretend to give an itemized account of the fees collected and from whom; they virtually refer the court to the records of the officers for the evidence. The county court is given the power to audit the accounts of these officers, and it is made their duty to examine statements made by them and, if necessary, to hear the evidence of witnesses. A mere examination of the statements is not a proper performance of their duty. They should see that the statements are correct. This is particularly so when the statements on their face, as in this case, are not such as the law requires. It cannot be said that the county court was ignorant of facts which were open to its examination, and which it was its duty to know."

him, but received by him "in virtue of his office," then the three years' statute of limitations applies, and the cause of action stated in these two counts is barred by such statute. Upon this theory, the trial court was right in sustaining the demurrer as to these counts. Other grounds of demurrer are not well taken. We suspect plaintiff may have trouble in proving a case under counts 3 and 4 of the petition, but that remains to be seen.

Under the views above expressed, the instant judgment will be reversed, and the cause remanded. All concur.

DAVIS v. CARP.

(No. 16751.) (Supreme Court of Missouri, Division No. 1. June 2, 1914.)

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1. JUDGMENT (§ 910*) — ACTIONS ON JUDGMENT-LIMITATIONS.

Where a judgment debtor's usual place of abode was within the state for more than 10 years after the date of the judgment, and during the entire period his family resided in the state, while he was temporarily absent, so that service of summons on him in the state could have been had, as authorized by Rev. St. 1909, § than 10 years after its date, was barred by sec1760, an action on the judgment, brought more tion 1912, requiring the bringing of actions on judgments within 10 years from their rendition, though it be assumed that the limitations preof the judgment debtor. scribed may be tolled on proof of nonresidence

It is true that Judge Macfarlane was discussing the tolling of the statute of limitation by fraudulent acts, but he says much that is of interest here. The county court passes upon and allows charges of the county clerk. To state a good cause of action grounded upon fraud, the fraud practiced must be pleaded. This is as much requisite in a petition grounded upon fraud as it is a requisite to show fraud for the purpose of tolling the statute. We do not believe the pleader intended to ground the action upon fraud, but, if he did, the demurrer was well taken, because the facts alleged were insufficient. The five-year statute of limitation has no application to the first and second counts. But plaintiff says the three-year statute, supra, has no application, because the items of cash named were not received by defendant "in virtue of his office." We do not agree to this view. If they were not received "in virtue of his office," how were they

received? We can conceive of no other way or capacity in which they were received. They may have been wrongfully and, speaking from the statute, unlawfully received, but they were evidently received "in virtue of his office." In other words, they were received as an officer, not as an individual or agent. Take the alleged overcharge for the tax books. Whether the defendant was allowed or retained the proper or the improper amount for such services, yet whatever amount he did retain for such services was retained by him officially, for official work, and was received, had, held, and retained “in virtue of his office," as used in the statute. If these two counts (first and second) do not plead actions grounded upon fraud, as we have held, and if they do seek to recover from defendant money wrongfully held by

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 477-479; Dec. Dig. § 99.*]

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1732-1737; Dec. Dig. § 910.*] 2. LIMITATION OF ACTIONS (§ 91*)—PREVENTING COMMENCEMENT OF ACTION-ABSCOND ING OR CONCEALING" - STATUTORY PROVISIONS.

The absconding or concealing within Rev. St. 1909, § 1905, providing that, if any person by absconding or concealing himself prevents the commencement of an action, the action may be commenced within a time limited after the commencement of an action shall have ceased to be prevented, must be of such a character as to prevent the commencement of an action, and a from the assignee of the judgment, does not judgment debtor, who merely conceals his name thereby prevent the commencement of the action, which must be brought within 10 years after rendition of judgment, as required by sec

tion 1912.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 468; Dec. Dig. § 91.* For other definitions, see Words and Phrases, vol. 1, pp. 30, 31.]

3. LIMITATION OF ACTIONS (§ 99*)-PREVENTING COMMENCEMENT OF ACTION-"IMPROPER ACT."

The "improper act" referred to in Rev. St. 1909, § 1905, providing that where any person, by absconding or concealing himself, or by any ment of an action, the action may be comother "improper act," prevents the commencemenced within the time limited after the commencement of an action shall have ceased to be prevented, must be one in the nature of a fraud that will prevent the commencement of an action, and a judgment debtor, who merely conceals his name from the assignee of the judg ment, is not guilty of an improper act, which prevents suit.

4. LIMITATION OF ACTIONS (§ 91*)-PreventING COMMENCEMENT OF ACTION-ACTS CON

STITUTING.

Where a judgment debtor concealed his name from the assignee of the judgment, and informed him that he did not know where the judgment debtor was, but believed that he was in business in a designated city, and offered a nominal sum for the judgment, and the assignee within two days thereafter brought action on the judgment, but did not give the sheriff any directions where to look for the debtor, and the sheriff was unable to make service, the misconduct of the judgment debtor was not an absconding or concealing, or other improper act, within Rev. St. 1909, § 1905, so as to toll the 10-year limitation prescribed by section 1912.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 468; Dec. Dig. § 91.*]

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Manton Davis against Samuel Carp. From a judgment for defendant, plaintiff appeals. Affirmed.

Stanley D. Pearce and James G. McConkey, both of St. Louis, and James A. Potter, of Aurora, for appellant.

LAMM, J. Dates are material. On the 26th of January, 1898, in the circuit court of St. Louis, the receiver of the Mullanphy Savings Bank recovered a small judgment against Rosenberg and two Carps (Max and Sam). On the next day in the same court he recovered another. On the 4th of August, 1904, he assigned the judgments on the margin of the record for value received to plaintiff.

(Note: We assume the receiver made a clearance sale of uncollectible or desperate assets in a job lot to clear the way for a settlement of his receivership and his acquittance; the record showing the following, plaintiff loquitur: "A. I do not know what I paid for these judgments, Mr. Bloss. I paid $310 for this and a lot of other paper. Q. Can you give any idea of the amount of claims you received? A. No, sir. Q. No idea at all? A. No. There was a lot of hotchpot stuff barred by statute of limitations and otherwise, and I haven't any idea how much stuff there was.")

The Pleadings.

The case was tried on a third amended petition in two counts containing conventional averments relating to the recovery of the judgments, their assignment and nonpayment. To toll the statute of limitations each count alleged, in substance, that having instituted suit on the judgments in the circuit court of the city of St. Louis on the 13th of March, 1907, and issued summons, the sheriff made return that he failed to find "defendant Sam that Carp in the city of St. Louis, Mo."; said Carp was a resident of said city at the time of the rendition of the original judgments, and continued to be such resident until "the day of May, A. D. 1907"; that he then left the state of Missouri, and

has continuously resided out of the state thereafter, is now a nonresident, and has no usual place of abode in the state where service of process might be had on him. To the same end. the petition makes the following averment:

"And plaintiff further states that prior to his departure from the state of Missouri, as aforesaid, the defendant herein absconded and concealed himself in this state so that the ordinary process of law could not be served upon him, and plaintiff further says that the defendant from and after, to wit, the 11th day of March, A. D. 1907, until, to wit, the day of May, A. D. 1907, was guilty of a wrongful and improper act preventing the service of process on him, in this: That he misrepresented his identity to the plaintiff when the said plaintiff was attempting to locate and identify the defendant Sam Carp in order to have process served upon him."

The answer, excepting therefrom the allegations specially admitted, is a general denial. It then goes on to admit the recovery of the original judgments, but denies they have never been paid as alleged. Contra, it alleges they have been fully paid and settled before suit, and that plaintiff has no right to maintain the action. Moreover, as a separate defense, it alleges that more than 10 years have intervened since the rendition of the judgments and the bringing of this suit, and therefore said judgments are barred by the statute. Denying that he was a nonresident of the state or kept himself concealed for the purpose of preventing the service of process on him, defendant "asks to go hence without delay [sic] and recover his costs herein laid out and expended."

The replication denied the new matter.

On March 13, 1907, plaintiff, as such assignee, sued the Carps on both said judgments, in the same court. Failing to get service on the present defendant, he dismissed as to him, and took judgment against Max Carp for the rise of $700.

The Facts.

On the 12th of February, 1909, the present suit was brought in the Christian circuit court on both of the original judgments, and service was had. Presently plaintiff took a change of venue, and the case went to the Lawrence circuit court. Presently defendant took a change of venue, and the case went to the Jasper circuit court. There it was tried to the court, without the aid of a jury, and plaintiff (cast on the merits) appeals here in due form; our jurisdiction depending on constitutional questions.

Defendant introduced no evidence. Plaintiff introduced certified exemplifications of the two judgments and marginal assignments, also an exemplification of the files and record of a suit brought on the judgments in the circuit court of St. Louis on the 13th of March, 1907, and a non est return of the sheriff on the summons in that case as to this defendant, the dismissal as to him, and the judgment as to Max. Such documentary

evidence was supplemented by the deposition | the time the family was moved, defendant of one Ingersoll, also the deposition taken returned once a week to visit them, someby plaintiff of Max Carp, also the oral testi- times on Sundays and sometimes in the midmony of Mr. Davis, plaintiff. Idle of the week. This witness further testified that while defendant worked for his brother H. Carp in Aurora he went under the name of "S. Carp," and that such was the name he usually went under. It also turns out that his true name is "Sol. Carp," and that Samuel is the father's name. On crossexamination it was shown that when defendant moved his family to Carr street to the rooms rented of witness, he brought his furniture and kept house there; that the run from St. Louis to Greenville is about 1 hour and 20 minutes on a fast train; that when he found out that he could make a living at Greenville, in March, 1908, he moved his family there, telling witness: "Now I am going to live there."

By Ingersoll's deposition plaintiff showed that he (witness) was a detective; that in September, 1907, he saw defendant in a store at Greenville, Ill., at work there with his two boys. Later in the same month he saw the boys there again. This detective had a kodak, and was there for the purpose of taking a snapshot picture of defendant. He took a snapshot of him, but the negative did not develop well. In October of that year he went back on a like venture, and, spying about, saw him busy in the store, but failed to get a snapshot because defendant did not come out. It seems this detective was employed by the Pinkerton Detective Agency to get a picture of defendant for the purpose of some insurance controversy the agency was employed in. This fact was developed in crossexamination, and, further, that the detective made no inquiry in St. Louis where defendant lived; that on one of his visits to Greenville he talked with defendant, but did not tell him what he came for, or that he was a detective, nor did he ask his consent to take his picture, but made several attempts to do so (furtively, as we understand it) while he was in the store, but did not succeed because the light was insufficient. The detective made three trips to Greenville, and saw de fendant twice, the first and last time. He testified that on the second trip defendant was not in Greenville, but was in St. Louis. He made no inquiry as to where defendant's wife resided, and did not know, and did not know where his family was; in fact the detective was not employed to find defendant's residence, but was employed to get his picture, and “did not care" where he lived.

By the deposition of Max Carp plaintiff showed that he, Max, was defendant's brother; that in 1897 defendant went to Aurora, Mo., with his family and worked there for another brother, H. Carp, for about five years. In 1902 defendant returned to St. Louis, and there and then opened a cleaning and repair shop under the name of "S. Carp" on Jefferson avenue, and continued that business at that point and on Broadway until some time in 1907, living in St. Louis (possibly on Missouri avenue) with his family, consisting of a wife and nine children, all minors. Some time early in 1907 defendant rented some rooms from witness on Carr street, and took up his residence there, continuing to live in those rooms with his family until later. In March, 1908, defendant moved his family to Greenville, Illinois, and since then they have lived there. Prior to taking his family to Illinois (i. e., some time in 1907) defendant went there to try and see if he could estab

lish a business, intending to take his family later if he succeeded, which he did, as said.

Plaintiff testified in his own behalf (and over the objection of defendant) that the two judgments remained wholly unpaid; further that two days before he instituted the suit on the judgments in the St. Louis circuit court, to wit, on the 11th of March, 1907, he started out to locate his judgment debtors, the Carps. Having studied the directory and obtained what information he could on inquiry at the houses he visited, he finally found defendant at 2251 Missouri avenue, in the kitchen in the back part of his house, a residence, and not a business house, having his lunch. Witness did not know him, but informed him he (witness) was looking for Max and Samuel Carp, asked him if he was either of the two, and, if not, to direct him where they were. Defendant told him his name was Eagle Carp. Asked to spell it, he spelled it I-e-g-l-e. Let witness tell the balance in his own words:

"He further told me he didn't know exactly where Samuel Carp was, but thought he was in business in Cairo, Ill.; inquired further as to my errand, and I told him all about these judgments, and thereupon he told me he didn't think Samuel Carp was worth anything, but as a tified that he remembered his peculiar pronunmere matter of business [elsewhere witness tesciation of the word'] he would give me $15 for the judgments. That was practically the whole of the conversation I had with Mr. Carp at

that time."

Two days later plaintiff instituted his St. Louis suit. It does not appear that he gave the sheriff any directions where to look for the Carps, or either of them, and he says he did not assist the sheriff in trying to find defendant, nor does it appear he made inquiry of Max Carp, or gave the sheriff what information he had. Witness never saw Mr. Carp until the time depositions were taken in his office (presumably the depositions of Max Carp and the detective used in this case). The recognition came about in this way:

"I never," said witness, "recognized him exactly at the time the deposition was taken until it was over. I had a hazy recollection this was the man. After the deposition was over Mr.

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