State ex rel. Spratley v. Maries County

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 623,339 Mo. 577
• Parties: State of Missouri at the relation of Edna Gray Spratley, Appellant, v. Maries County; George F. Martin, W. F. Lindner and Joseph Lischwe, Judges of the County Court of Maries County
• Court: Missouri Supreme Court

98 S.W.2d 623

339 Mo. 577

State of Missouri at the relation of Edna Gray Spratley, Appellant, v. Maries County; George F. Martin, W. F. Lindner and Joseph Lischwe, Judges of the County Court of Maries County

Supreme Court of Missouri

November 12, 1936

Appeal from Maries Circuit Court; Hon. Nike G. Sevier Judge;

Affirmed.

C D. Snodgrass and H. M. Atwell for appellant.

(1) Respondents should not be allowed to evade and violate statutory law, Sections 11812, 11813, Revised Statutes 1929. (2) Judgment entered by clerk of the court of record is presumed to be judgment directed by the court and such presumption can only be overcome by proper record evidence of a different judgment actually rendered. Kreisel, Admr v. Snavely, 135 Mo.App. 155, 115 S.W. 1059. (3) Not essential to validity of record that they be signed by the judge. Platte County v. Marshall, 10 Mo. 345; Fountaine v. Hudson, 93 Mo. 62; Gibbs v. Southern, 116 Mo. 204. (4) Parol or extrinsic evidence is inadmissible to contradict, impeach, vary or explain judicial records. Davidson v. Davidson Co., 226 Mo. 1, 125 S.W. 1143; Cumberland Presb. Church Board of Ministerial Relief v. Drummond, 167 Mo. 54; Sutton v. Cole, 155 Mo. 206; State v. Sinebaker, 90 Mo.App. 280. (5) In the absence of fraud or mistake, parol evidence is inadmissible to add to, vary, modify or contradict written contract showing on face thereof that it includes entire agreement. Colt Co. v. Gregor, 44 S.W.2d 2, 328 Mo. 1216. (6) Parol evidence is inadmissible to vary or add to the language of the judgment, decree or record of court, expressed in plain and unambiguous terms. Montgomery v. Farley, 5 Mo. 233. (7) Parol evidence will not be received to impeach verity of the records of the court. State ex rel. Graves v. Primm, 61 Mo. 166.

W. H. Holmes for respondents.

The evidence fails to show that the accounts of petitioner were stated and certified as required by Section 11813, Revised Statutes 1929.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause is in mandamus to compel the judges of the County Court of Maries County to issue a warrant to relator in payment of alleged unpaid salary as deputy circuit court clerk. The alternative writ was issued and respondents filed demurrer thereto, stating, as grounds: (1) That the facts stated were insufficient to entitle relator to the relief sought; (2) that it is now shown that relator has exhausted or availed herself of all legal remedies, other than mandamus, or that she is without other adequate remedy (3) that the petition (alternative writ) shows on its face that relator has a legal remedy (other than mandamus). The record does not show that the demurrer was overruled, but we may assume it was, since respondents filed return, which is a general denial, and a plea that relator has an adequate remedy other than by mandamus. It does not appear that a reply was filed. The trial court found against relator and quashed the alternative writ. Motion for a new trial was overruled and relator appealed to the Springfield Court of Appeals, but that court transferred the cause here, because Maries County is a party. [Sec. 12, Art. VI, Constitution; Sec. 1915, R. S. 1929, Mo. Stat. Ann., sec. 1915, p. 2589.]

For some time prior to March 14, 1927, relator had been deputy circuit clerk and deputy recorder of Maries County, and her salary was twenty-five dollars per month. She claims that on March 14, 1927, the circuit court of said county made an order of record increasing her salary fifteen dollars per month, beginning April 1st. The county court refused to pay the alleged increase and she filed this cause to obtain a warrant for the alleged increase over the period of twenty-six months, amounting to $ 390. The remedy invoked by relator is not questioned, but, if relator is entitled, on the case made, to the alleged increase, mandamus it seems, will lie. [Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845.]

Relator introduced circuit court record M, page 448, upon which page was this: "State of Missouri, County of Maries, SS. March Term, 1927. In the circuit court of said county, on the 14th day of March, 1927, the following, among other proceedings, were had, viz.: State of Missouri, County of Maries, SS. In the matter of the salary of the deputy circuit clerk and recorder. Now on this day it appearing to the court that the salary now allowed the deputy circuit clerk and recorder is inadequate, it is ordered by the court that a sum of fifteen dollars per month be allowed in addition to the salary already allowed for deputy hire in said office, and the same begin April 1st, 1927."

There was no minute of said alleged order on the judge's docket or on the clerk's minute book. It appears only on record M. J. T. Davis, circuit court clerk at the time of the alleged order and at the time of the trial, and a witness for relator, testified that the order was certified from his office to the county court; that the orders of the circuit court were not always signed by the judge. Davis further testified: "Q. This order which you have just read here, is there anything irregular about that order in your records, is it put there in the proceedings of the day with the other orders? A. Yes, sir, I think it is. It might have been that we overlooked that for a short time and put it in that space there. I don't know whether it was put right in when that page was written or not; I don't think it was from the looks of the ink. It looks like a new ribbon was put on when that was recorded."

Judge Henry J. Westhues, judge of the Circuit Court of Maries County, at the time of the alleged order, was a witness for respondents and, without objection, testified that in December, 1926, he made an order for $ 100 "in addition to the salary already paid," for the deputy clerk. "Q. What were the circumstances of that? A. At that time the highway department was condemning land through here for road purposes and there were quite a number of suits filed at that time and it required quite a good deal more work on the part of the circuit clerk and Mr. Davis took the matter up and said twenty-five dollars a month was not enough for that and I went over the docket and agreed with him and I allowed a lump sum for that purpose and that was because of the highway suits. Q. Then at a later date this order of fifteen dollars a month appears that you have no recollection of. After that time and during your time on the bench did Mr. Davis speak to you about the salary proposition? A. He spoke to me every time I was down here about raising the salary and after that previous order was made giving one hundred dollars, he wanted it increased and I wouldn't allow because the work of the circuit clerk was not sufficient to permit such a sum, and I think that was correct. Q. During the time you were on the bench did he say anything about the unpaid salary? A. No, sir. If I had allowed the forty dollars a month there wouldn't have been any excuse to ask for an increase."

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