Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1882-07-29
OPINION OF THE COURT


OPINION OF THE COURT.
This suit was instituted III the La
fayette county circuit court on q
bond executed by defendant, O'Gor-
man, - county clerk Of said county
with his co-deiendants as sureties.
The petition sets out at great length
the cause Of action, which, being
stripped Of its vsrbisge substantially
alleges that O'Gorman was elected
county clerk of the county court OF
Lafayette county Tor four years. his
term of Office commencing on the first
day of January, 1871, aud ending on
the fret day OF January, 1875. that be-
fore entering on his duties he execut-
ed the bond s%nedsupo4a in the penal
sum of 5000 to be void on condition
that he faithfully ,discharge all the
duties of clerk Of the county court
in accordance with law; that by virtue
of an act of. the general assembly
passed March 21st. 1868. it became
the duty of said 'O'Gorman, at the
eud Of each Ayear to deliver to the
jndges or justices of the county'court
of 4saids county, ss statement under
oath, aud in detail Showing the ag-
gregate amount of fees received by
him as clerk during the year hast paSt
and to pay into, the treasury upon tn
order of the county court. the SUR
plus remaining after .dedncting from
the aggregate.of fees recewedsby him
the sum of $4,000, and such Gums for
deputies or assistants in his office as
the court might allow that said
O'Gorman did not at the end Of the
years 1871. 1872 and 1878, comply with
the requirements of said act in max
Ing within the time prescribed or at
any time y, statement OF the fees re-
ceived by him, but OH the contrary
and In evasion Of the statute and with
the design Of cheating and defraud-
ing the said county of Lafayette, By
false representations. fraudnlenHyi
deceived and procured the coupty
court to direct and have entered on.
the records of said court by said
O'Gorman the following false and
fraudulent entries.
Lafayette county court, January
term, fourth4day, January 4th, 1872"
s.Now at this day comes James
O'Gorman, clerk.of this court, and
proves to the satisfaction of the, court
that the compensation received by.
HIM during the last year does hotSexs
ceed that allowed by law"
Aud the following. to-wit:
'Lafay cite county court, February
term. 9TH day. February 18th, 1878.
'Now. at this day comes James
O'Gorman, clerk of this court aud
makes his settlement, of sli tees re-
ceived by him for the year 1872. which
10 by the court approyed.e 80
And the following, 10-wit:
.Lafayette county court. May term,
18th day, May 14th, 1874.".
Snow, at this day GENES James
O'Gorman and presents to the court
here, his statement proving to the
satisfaction of the court that tine
amount of fees received by him does
not exceed that allowed by law. said
statement being for the, year 1873. aud
which is by the court approved and
ordered filed"
It is then averred that Lafayette
county instituted a suit for the pur-
pose OF vaeaLing said orders, the
venue Of which being changed to the
circuit court of Ray comfy ,.the cause
was iU that court tried at its February
term, 1877. aud a judgment rendered
in March. 1877, vacailng and annull-
ing said orders ON the. ground that
they were fraudulent1y. obtained. to
be made by said O'Gorman that at.
forwards at the June term, 1877, of
the Lafayette county court, the said
court ordered a citation to be issued
to said O'Gorman requiring him Ia
appear at the July term of said court,
aud makeFthe statements required by
the act of 1868, of the fees received
by him for each of the years 1871,
1872 and 1873; that at said July term
said O'Gorman appeared aud filed
his motion to tisiniss the proceeding
which being overrnied he declined
and refused 10 make or file any state
ment or statements in regard to feei
received by him during said years
and also declined further to appeal
to said proceedings. whereupon tn,
court proceeded to ascertain the fee
aud emoluments. received by sale
O'Gorman as clerk for each of sal,
years, and found from the evidenc
after deducting 8 $500 and allowin,
200 fer deputies and assistants 70
each year, that for the year 1871 Their
was q surplus Of So, 404 80. for til
year 1872, a surplus OF $4,629 Sc, ant
for the year 1873, q surplus O
$2,58S n, which respective Gums 8
found, O'Gorman was ordered to pa
into the county treasury.
The petition then assigns six breach
% of the bond and rs the court 'foun
for defendants on the first, seconc
third aud fourth breaches it is onl
necessary TO notice the fifth aud slxt
upon which the finding was for plafl
tiff.
The fifth breach in substance Is tn,
defendant failed TO make any stat,
ment as required by law Of the fee
received by him for the year 1877;
sun of $4,679 Sc, in excess of wins
he was entitled to retain as clerk ,ha
not paid the same into the ~treasur,
but had converted the same to b
own use.
The sixth breach was for O'Go
mans failure to account for the fe'
of the year 1873.
1t is also averred that plaintiff con
menced an actioD against defendan
on said bond in the circuit court of
fayette county on the 10th Decembe
1875, and assigned the same breache
five and Elk, assigned in this suit th
defendants appeared to said actic
aud plaintiff GU the 2lst day of A