Hooper v. Ely

• Citation: 46 Mo. 505
• Parties: DAVID HOOPER, Appellant, v. DAVID A. ELY, Respondent.
• Decision Date: 31 October 1870
• Court: United States State Supreme Court of Missouri

46 Mo. 505

DAVID HOOPER, Appellant,

v.DAVID A. ELY, Respondent.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

Blair & Hillis, for appellant.

Ellison & Ellison, for respondent.

The County Court of Adair county had authority to issue the warrant. (Boggs v. Caldwell & Co., 28 Mo. 586-8; 1 N. Y. Dig. 455, § 8; 34 Barb. 69-79; 21 How. 178; 12 Abb. Pr. 204-7; 2 Sandf. 460; State v. Cooper County Court, 17 Mo. 507; Campbell v. Polk County, 3 Iowa, 472; 18 Cal. 144.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff, as a tax-payer of Adair county, obtained an injunction against the treasurer to restrain him from paying a certain county warrant, upon the ground that it was issued without authority of law, and also asked for an order upon defendant Ely, the holder, to bring it into court to be canceled. The injunction was finally dissolved, and the judgment was affirmed by the District Court.

It appears that one Owenby, sheriff and collector of the county, had defaulted and absconded, and that defendant Ely and others, who were abundantly responsible, were upon his official bond. During a recess of the County Court, Ely proposed to one of the county judges to go after Owenby and bring him back, who advised him to do so, and said that he would use his influence with the other judges to make the county pay his expenses. Ely and one of his co-sureties pursued the defaulter, brought him back, and obtained indemnity for a large portion of their liability. They presented their claim to the County Court for expenses, etc., and were allowed the sum of $1,632.35, for which the warrant in controversy was drawn. Afterward, in a suit upon Owenby's bond, judgment was entered by consent for over $5,000, with a stay of execution for twelve months and an agreement that it might be discharged in county warrants. Defendants claim that it was part of the understanding that this particular warrant should be received in part payment; but it is clearly established that the county authorities did not so understand it, and that the probate judge, who had succeeded the old County Court, had already arranged with the county attorney to commence this proceeding.

We have only to inquire whether the County Court was authorized to allow the claim and order the warrant to be drawn. But little weight can be given to the encouragement given to Ely by the county judge before he left to pursue the defaulter. It could only go to the good faith of Ely, and could not of itself bind the county. If the County Court acted within the scope of its authority, the county is bound without it; if not, it is of no avail.

Had the court, then, a right to pay this bill? Counsel base the right upon its duty to audit claims and its power to control and manage the property of the county. The County Court, it is true, is authorized to audit and direct the payment of claims against the county; but they must be lawful claims. To allow any other, clearly transcends its powers, and its payment can be enjoined. The power to control and manage the real and personal...