State ex rel. Carroll County v. Roberts

Napton, Judge,

delivered the opinion of the court.

The suit was against Boberts, the sheriff and ex-officio collector of Carroll Co., and his sureties on his official bond.

It is averred, in the petition, that a final settlement was made by the County Court of Carroll county with Boberts as collector, in February, 1871, and that, in this settlement, Boberts urns credited with $435.23, the amount of taxes due on delinquent lands ; that, in fact, these delinquent taxes were paid, and that the alleged delinquents have receipts for the same. In other words it is alleged that the collector received a credit, in this settlement, to which he was not entitled ; that this credit was the result of fraud or mistake, and a judgment is therefore asked against him and his sureties.

The answer sets up the final settlement, made by the collector with the County Court, as a bar. To this answer there was a demurrer, which was overruled, and the only question presented by the record is whether this final settlement is a bar to this action.

. In regard to settlements by administrators, guardians, curators, &c., the decisions of this court have been uniform, that the action of the County and Probate Courts, in such settlements, is judicial in its character, and therefore afina! settlement with the court is conclusive so long as it stands; and it can be set aside only by a proceeding in the Circuit Court, on the ground of fraud or mistake. (State vs. Rowland, 23 Mo., 98 , and cases there referred to.)

*404 A distinction was, however, made in the cases of Marion County vs. Phillips, ( 45 Mo., 79 ,) and Owens vs. Andrew Co., ( 49 Mo., 372 ,) which we think a sound one. Settlements made with the County Court iu ‘regard to administrators, guardians, etc., may properly be considered as judicial acts, since they are judgments of a court on proceedings inter partes in which there is notice required, and in which the county and the court are not interested. In settlements with collectors, it is a mere accounting between principal and agent or between a supervising agent and the subordinate. • I refer to the opinion of Judge Bliss, in 45 Mo. 77 , where the learned judge has fully discussed this point and established this discrimination, with the sanction of all the court.

It is now insisted, however, that no suit could he instituted against the sureties of the collector, until there had been asnit iu equity to set aside the settlement. Undoubtedly, if this settlement could he regarded as a judgment, in a suit or proceeding where the sureties were "not parties, it might be a protection to them until set aside. Such has been decided to be the law in regard to settlements of administrators, guardians, etc.

But in this case it is not perceived how this settlement operates with more efficacy than an ordinary receipt. If a sheriff should receive, on an execution, double the amount he receipts for, would the plaintiff in the execution have to go into a chancery proceeding to set aside the receipt ? The sureties ou his bond are responsible for breaches of it, and although the receipt iu the case supposed and the settlement iu the case now under consideration, are certainly prima facie evidence in favor of both the sheriff and his sureties, neither can be pleaded as a bar to the action. They may both be explained or set aside as made through fraud or mistake.

"Why require two suits to settle what can as well be determined in one?

The judgment is reversed 'and the cause remanded;

the other judges concur.