Abington v. Harwell
| Decision Date | 08 April 1919 |
| Citation | 211 S.W. 885,201 Mo.App. 335 |
| Parties | CARL C. ABINGTON, Appellant v. J. H. HARWELL, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas.--Hon. John A Snider, Judge.
Judgment affirmed.
W. T Rutherford and Abington & Phillips for appellant.
(1) The Supreme Court in banc in the case of State ex inf. John T. Barker, Attorney-General, v. H. I. Duncan, J. H. Harwell et al., 265 Mo. 26, 175 S.W. 940, not only held that the defendant J. H. Harwell was illegally exercising the duties of the office of Collector of the Revenue of Butler county in Poplar Bluff Township thereof, and ousted him from such office, but the opinion also held that the plaintiff herein Carl C. Abington, was the legally appointed Collector of the Revenue of Butler county, Missouri. State ex inf Attorney-General v. Duncan et al., 265 Mo. 49, 175 S.W. 947. (2) By filing a demurrer to a pleading, all facts pleaded therein are admitted to be true. See Dodson v. Lomax, 113 Mo. 551; Bergin v. St. Louis, 131 Mo. 26; Goodson v. Goodson, 140 Mo. 206; Shields v. Johnson County, 144 Mo. 76; Anadle v. Land, Etc., Co., 128 S.W. 38, 144 App. 303; State ex rel. v. Sheppard, 192 Mo. 497; McKinzie v. Matthews, 59 Mo. 99; State ex rel. v. Aloe, 152 Mo. 466. (3) The decision and opinion of the Supreme Court that the plaintiff Carl C. Abington was legally entitled to hold the office of Collector of the Revenue of Butler county, Missouri, was within the issues made by the pleadings (see replication of the Attorney-General, appellant's abstract of record, page 49). But, even if this court believed that said opinion was unauthorized and was for the wrong party, still, this court would be bound to follow it "as the last and controlling decision of the Supreme court on the subject." Harburg v. Arnold, 87 Mo.App. 326; Thompson v. Irwin, 76 Mo.App. 418; Sage v. Reeds, 17 Mo.App. 210; Constitution of Missouri, Sec. 6, Art. 6; State ex rel. v. Broaddus, 238 Mo. 139, 142 S.W. 340. (4) It was not necessary for the plaintiff to bring a suit of some kind to establish his rights to the office of Collector of the Revenue of Butler county, Missouri, before instituting this suit against the defendant to recover from him the fees which he was illegally retaining. The defendant admitted facts sufficient in the quo warranto proceedings in the Supreme Court to authorize that court in holding, as it did hold, that the plaintiff Abington was the legally appointed Collector of the Revenue of Butler county. Plant Seed Co. v. Seed Co., 23 Mo.App. 579; Sec. 1804, R. S. 1909; Springfield, etc., v. Donovan, 147 Mo. 622; Williams v. Railway Co. 112 Mo. 463. (5) This circuity of action which respondent insists in the lower court should be taken is the very result that the Code of Civil Procedure seeks to avoid. It was the object of the Code of Civil Procedure, and this object is being effectuated more and more by the modern decisions of the Appellate Courts, to avoid circuity of action and unnecessary litigation where such results can be accomplished. See, in this connection: Lane v. Dowd, 172 Mo. 167; Martin v. Turnbaugh, 153 Mo. 172; Padgett v. Smith, 206 Mo. 303; James v. Groff, 157 Mo. 402. Under the old common-law pleading circuity of action was not only not frowned upon, but was, in fact encouraged. For a long while after the State of Missouri adopted the code the courts still hung on to the old idea of things and still tried to encourage circuity of action. As illustrative of this, take the case of Lambert v. Blumenthal, 26 Mo. 471, and Gott v. Powell, 41 Mo. 416, in both of which cases it was held that partition would not lie against one in possession of land asserting exclusive title thereto, but that the party out of possession must first bring his action of ejectment, try his title, and, after he had won that case, then he must institute his suit then for partition. When these cases were decided the courts were still in the shadow of the common-law pleadings. Grimes v. Miller et al., 221 Mo. 636, 121 S.W. 21. (6) Defendant conceded plaintiff's title to the office of Collector of the Revenue of Butler county, Missouri, and his right to the office, by delivering over the books and possession of the office on the 1st day of May, 1915, from which date until the -- day of March, 1917, plaintiff performed the duties of Collector of the Revenue of said county. Of this fact this court can take judicial notice. Mayes v. Palmer, 206 Mo. 297. If, however, this court should feel disinclined to take judicial notice of the fact that Abington took charge of the office of Collector of the Revenue of Butler county, Missouri, on the 15th day of April, 1915, as admitted in defendant's answer, and that he continued to exercise the duties of said office until his term expired on the 1st day of March, 1917, then counsel for appellant suggests to this court that such is the facts, and, this court declining to take judicial notice thereof, there rsults a hiatus of proof in the case, and this cause should be reversed and remanded to the lower court for this proof to be made. See, in this connection: Finnegan v. Railroad, 244 Mo. 662; Ordelheide v. Wabash Ry., 80 Mo.App. 369. (7) Plaintiff's petition states a good cause of action for money had and received. Clifford Banking Co. v. Commission Co., 195 Mo. 288; Henderson v. Koenig, 192 Mo. 709; Harrison v. Lakeman, 189 Mo. 598; Johnson-Brinkman Co. v. Bank, 116 Mo. 568; Sanitary Co. v. Reed, 179 Mo.App. 170; Early v. Railroad Co., 167 Mo.App. 259; Paper Co. v. Publishing Co., 156 Mo.App. 198; Jenkins v. Gloppon, 141 Mo.App. 92; Roberts v. Neale, 134 Mo.App. 617; Stout v. Hardware Co., 131 Mo.App. 520; 528; Crigler v. Duncan, 121 Mo.App. 391; Harrison v. Murphy, 106 Mo.App. 573 (for money collected); Richardson v. Drug Co., 92 Mo.App. 520; Kelly v. Osborn, 86 Mo.App. 244; Deal v. Bank, 79 Mo.App. 269; Clark v. Bank, 57 Mo.App. 285. (8) Plaintiff was the de jure Collector of the Revenue of Butler county, Missouri. As a result thereof he was entitled to perform the functions of the office and to receive the fees and emoluments thereof. The defendant collected these fees and emoluments and he is responsible to plaintiff, the de jure officer, for them, and, therefore, the plaintiff in this case is entitled to recover from the defendant the fees which the defendant collected and retained while acting as collector. State ex rel. v. Clark, 52 Mo. 508; State ex rel. v. Gordon, 245 Mo. 28; State ex rel. v. McAllister, 31 S.W. 679; In re Berger's Estate, 133 S.W. 96, 152 Mo.App. 663; State ex rel. v. Babcock, 106 Mo.App. 72. (9) The Supreme Court held in the case of State v. Duncan et al., cited supra, that when a majority of all the votes cast upon the subject were against township organization and said vote was cast up and declared by the county court of Butler county that township organization in said county immediately ceased. Said court therefore rendered judgment ousting defendant from the office of Township Collector of Poplar Bluff Township. The law is that when an office is abolished, such as Township Collector, as in the instant case, that the former incumbent of said office cannot continue performing its duties, and as a result of such unlawful performance collect and retain fees for so doing. See in this connection: Stanfield v. Bexar County, 28 S.W. 114; State v. McAllister, 31 S.W. 679; 23 Am. & Eng. Encyc. of Law (2 Ed.), 398; 29 Cyc, p. 1424. (10) Defendant attempted to defend this action in the lower court upon the ground that in retaining the books of the collector and collecting the taxes as he did, and retaining the commissions which he did, that he was acting in good faith; that is, that he thought, under the law, that he was entitled to do so. In other words, his defense is that he acted in good faith and was ignorant of what the law was on the subject. This defense, of course, is not available to the defendant, for it is fundamental that ignorance of the law excused no man. State v. St. Louis Club, 125 Mo. 308, 319. (11) As between the plaintiff and the defendant in this case, the fact that the defendant officiously performed the duties of the office of Collector of the Revenue of Butler county, Missouri, within Poplar Bluff Township, and that the plaintiff did not perform such duties, gives the defendant no claim against plaintiff for compensation rendered for performing said duties. But to the contrary, the plaintiff can recover from the defendant the fees which he collected and retained for performing the duties of collector. 29 Cyc, 1424. (12) Defendant was not a de facto officer for reason that the office of Township Collector of Poplar Bluff Township, Butler county, Missouri, was discontinued and abolished, as the result of the general election held in said county on the 3rd day of November, 1914. Sec. 9, Art. 9, Constitution of Missouri; Chapter 119, R. S. 1909. (13) Defendant herein, after the result of the general election held in said county on the 3rd day of November, 1914, was lawfully ascertained, was not and could not be a de facto Collector of the Revenue of said township, because that office had been abolished and discontinued at the election aforesaid, and without a de jure office there cannot be a de facto officer. Ex parte Bob Snyder, 64 Mo. 58; State v. O'Brien, 68 Mo. 153; Norton v. Shelby County, 118 U.S. 425, 30 L.Ed. 178; 29 Cyc, 1391. (14) As a part of the general history of the State, the court will take judicial notice of the tenure of office of local officials. 16 Cyc, 869, 900; McCarty v. Johnson, 20 Tex. Civ. App. 184; Ellis v. Ruldin, 12 Kan. 306; Templeton v. Morgan, 16 La. Ann. 438; New York v. Vandeveer, 91 N.Y. App. 303, 86 N.Y.S. 659; Campbell v. Dewick, 20 N.Y. Eq. 186; State ex rel. v....
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