Phillips v. Laclede Cnty.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 68
• Parties: PHILLIPS v. LACLEDE COUNTY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 68

PHILLIPS

v.LACLEDE COUNTY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Laclede Circuit Court.--The case was tried before J. M. HERNDON, ESQ., sitting as Special Judge.

REVERSED.

Wallace & Nixon for appellant.

Belch & Silver and Geo. W. Bradfield for respondents.

NORTON, J.

Rufus Phillips presented to the county court of Laclede county, for allowance, an account against the county for selecting and securing the confirmation of swamp lands for said county. The county court refused to allow said account, and plaintiff appealed to the circuit court, where the cause was referred to Harrison Attaway, P. M. Bennett and Alf. Case, to hear and determine the matters in issue, and to report their action to the court. At a succeeding term of said court the referees made their report in which they found a balance due from the county of $3,294.46, and on this balance they computed interest at six per cent from the 17th day of January, 1868, to January 17th, 1878, the date of their report, amounting to $1,976.67, and making the aggregate amount of $5,271.12, for which sum plaintiff was entitled to judgment. After the coming in of said report, John M. Richardson, George W. Bradfield and James T. Moore, on their petition, were made parties plaintiff. Defendant filed exceptions to the report, which the court overruled, and rendered judgment for the sum of $5,271.12, from which defendant has appealed to this court.

It appears that during the investigation by the referees of the account, B. B. Harrison appeared before them and presented a petition to be made a party as the assignee of the interest of said Phillips, accompanied with an assignment by Phillips to him of all indebtedness, dues and demands against the county of Laclede growing out of any and all contracts made between Phillips individually or jointly with others, and the county court of said county, for services rendered in selecting swamp lands and having the same confirmed to said county. This assignment was dated the 8th day of October, 1862, and prior to the filing of the account by Phillips for allowance by the county court. Before action was taken upon the report by the circuit court said Harrison appeared and withdrew, by consent of the court, his petition to be made a party.

1. PARTIES TO SUIT: trustee of express trust: splitting up demands.

Defendant insists that inasmuch as by said assignment it was shown that Phillips had parted with his interest in the account at the time he presented it for allowance, that the court erred in not dismissing the suit, and rely on this as the chief ground for reversing the judgment. It appears from the evidence taken before the referees that in the...