State ex rel. Saline County v. Sappington , 68 Mo. 454 ( 1878 )

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.