American Constitution Fire Assur. Co. v. Robertson

• Decision Date: 11 October 1938
• Docket Number: 35235,35236,35237,35238,35239,35240,35241,35242,35243
• Citation: 120 S.W.2d 43,343 Mo. 198
• Parties: American Constitution Fire Assurance Company et al., Plaintiffs-Appellants, v. George A. S. Robertson (substituted for R. E. O'Malley), Superintendent of the Insurance Department of the State, Defendant-Appellant, Guy M. Sone and T. S. Mosby
• Court: Missouri Supreme Court

120 S.W.2d 43

343 Mo. 198

American Constitution Fire Assurance Company et al., Plaintiffs-Appellants, v. George A. S. Robertson (substituted for R. E. O'Malley), Superintendent of the Insurance Department of the State, Defendant-Appellant, Guy M. Sone and T. S. Mosby

Nos. 35235, 35236, 35237, 35238, 35239, 35240, 35241, 35242, 35243

Supreme Court of Missouri

October 11, 1938

Appeal from Cole Circuit Court; Hon. Nike G. Sevier, Judge.

Reversed.

Robert J. Folonie, E. R. Morrison, Homer H. Berger, Ragland, Otto & Potter and Igoe, Carroll & Keefe for plaintiffs-appellants.

(1) The final judgment having been entered and cause appealed to the Supreme Court, the Circuit Court of Cole County was without jurisdiction at a subsequent term to entertain or enter any order, decree or further judgment in the cause. State ex rel. Penn. Fire Ins. Co. v. Sevier, 102 S.W.2d 882; State ex rel. St. Charles Savings Bank v. Hall, 321 Mo. 624; Reid v. Bright, 232 Mo. 399; State ex rel. Gray v. Hennings, 194 Mo.App. 545; Maryland Cas. Co. v. Lucky Budge Mining Co., 192 Mo.App. 337; State ex rel. Williams v. Daues, 334 Mo. 91. (2) Respondent Sone received the funds as clerk of the Circuit Court of Cole County and as such clerk is not entitled to any additional compensation other than the statutory fee. Secs 11202, 11676, R. S. 1929; State ex rel. Courtney v Callaway, 208 Mo.App. 447; 11 C. J. 899; Howard v United States, 184 U.S. 676; State ex rel. Evans v Gordon, 245 Mo. 28. (3) The court had no right or power to appoint counsel for respondent Sone. Dalliba v. Riggs, 82 P. 109; Fidelity & Columbia Trust Co. v. Grommes and Ullrich, 216 S.W. 1078, 186 Ky. 345. (4) The allowances made by the court are excessive and exorbitant and shock the conscience. 6 C. J. 765; Dempsey v. Dorrance, 151 Mo.App. 429.

Roy McKittrick, Attorney General, Harry G. Waltner, Jr., and Drake Watson, Assistant Attorneys General, for defendant-appellant; J. F. Allebach and Julian O'Malley of counsel.

(1) Respondent Sone as circuit clerk of Cole County was under the obligation to receive and keep the impounded funds upon the order of the circuit court that he do so, because the statutes require it. Sec. 14, Art. IX, Mo. Const.; Secs. 1840, 11676, 11681, 11785, R. S. 1929; State of Ohio v. Kelly, 32 Ohio St. 421; Webb v. Insurance Co., 134 Mo.App. 576, 115 S.W. 481; Scott v. Marshall, 110 Mo.App. 178, 85 S.W. 99; Lynch v. Murphy, 119 Mo. 163, 24 S.W. 774. The following cases from other states construe the word "otherwise" as having a broad and comprehensive meaning: Nagle v. Brown, 37 Ohio St. 10; Radley v. Seider, 99 Mich. 431, 58 N.W. 366; State v. Dudenhefer, 47 So. 614, 122 La. 288; Starke v. Guffey Petroleum Co., 86 S.W. 1, 98 Tex. 542, 4 Ann. Cas. 1057; Weinberg v. Savitzky, 93 N.Y.S. 485, 47 Misc. 113; Silver Bow County v. Davies, 107 P. 81, 40 Mont. 418; McClanahan v. McClanahan, 105 N.W. 833, 129 Iowa 410; Davis v. Milady, 75 S.E. 363, 92 S.C. 135; Territorial ex rel. Curran v. Gutierrez, 78 P. 139, 12 N. M. 254; Plumas County v. Wheeler, 87 P. 909, 149 Cal. 758; Birmingham Waterworks Co. v. State, 48 So. 658, 159 Ala. 118. The rule of ejusdem generis does not apply. Webb v. Insurance Co., 134 Mo.App. 576, 115 S.W. 481; Territory ex rel. Curran v. Gutierrez, 78 P. 139, 12 N. M. 254 (2) Respondent Sone was under the legal duty to accept, keep and account for the impounded funds when the court ordered him to do so, regardless of the statute authorizing or directing him to do so. In re Finks, 41 F. 383; Howard v. United States, 184 U.S. 676, 46 L.Ed. 754, 22 S.Ct. 543; State ex rel. Courtney v. Callaway, 208 Mo.App. 447, 237 S.W. 173; State ex rel. City of St. Louis v. Thornton, 8 Mo.App. 27; Latham v. Fagan, 51 N.C. 62; Railroad v. Boswell, 104 Tenn. 529, 58 S.W. 117. He received such funds by virtue of his office. Saulsbury v. Lady Ensley Coal, Iron & Railroad Co., 110 Ala. 585, 20 So. 67; (3) Respondent Sone was not entitled to compensation or fees on funds handled by him because not authorized by statute. His right to compensation exists only when the statute so provides. State ex rel. Troll v. Brown, 146 Mo. 401, 47 S.W. 504; State ex rel. Evans v. Gordon, 245 Mo. 12, 149 S.W. 638; King v. Riverland Levee Dist., 218 Mo.App. 490, 279 S.W. 195; Railroad v. Boswell, 104 Tenn. 529, 58 S.W. 117; Hubbard v. Texas County, 101 Mo. 210, 13 S.W. 1065. The statute must be strictly construed. State ex rel. Troll v. Brown, 146 Mo. 406. His compensation attaches as an incident to his office and not because he performs a great volume of work, nor because the labors are light. (4) No fees are allowed to officers unless the statute provides for it, and respondent Sone was not authorized to collect any fees except those provided for in Section 11785, Revised Statutes 1929, which states that he may collect "for all orders not herein provided for, $ .30" nor was the trial court authorized to allow him a fee of $ 500 per month. The statutes allowing fees are strictly construed. Thornton v. Thomas, 65 Mo. 276; 11 C. J. 874, secs. 43, 45, 46, 47. Respondent Sone is entitled to his statutory fee, and this right could not be defeated by the work being performed by the litigant. State ex rel. v. Board of Police Commrs., 108 Mo.App. 98, 82 S.W. 960; Blackwater Drain. Dist. v. Borgstadt, 162 Mo.App. 151, 144 S.W. 888; 11 C. J. 869, sec. 35. (5) Even if the trial court had in definite terms appointed respondent Sone individually as custodian or as receiver of the refund money, such appointment and the allowance of compensation additional to his salary as circuit clerk was illegal and void as against public policy because under the law respondent Sone, being the Circuit Clerk of Cole County, was required to devote his personal attention to the duties of his office. Sec. 11202, R. S. 1929; White v. McCoy Land Co., 101 S.W.2d 763; Roberts v. Criss, 266 F. 296, 11 A. L. R. 698. Other cases discussing kindred questions and holding unenforceable agreements based on violation of the contractual duties or statutes are the following: Western & Co. Life Ins. Co. v. New Madrid County Farmers Mut. F. Ins. Co., 99 S.W.2d 506; State ex rel. Business Men's Assur. Co. v. Allen, 302 Mo. 525, 259 S.W. 77; Rice Bros. & Nixon v. Nat. Bank of Commerce, 98 Mo.App. 696, 73 S.W. 930; (6) The judgment should be reversed because it fixes and allows final and complete compensation to both respondents for services not yet performed. Maxwell v. Wilmington Dental Mfg. Co., 82 F. 214; Meissler v. Meissler, 94 Ill.App. 396; Attorney General v. North Amer. Life Ins. Co., 89 N.Y. 94; People v. Anglo-American S. & L. Assn., 107 N.Y. 270, 94 N.Y.S. 1113; Riordan v. Horton, 16 Wyo. 363. (7) The judgment is illegal because it was rendered without notice to the appellant. Secs. 758, 760, 761, 1273, R. S. Mo. 1929; 46 C. J. 557, secs. 64, 65; Roberts v. St. Louis Merchants' Land Imp. Co., 29 S.W. 584, 126 Mo. 460; State ex rel. Ross v. Sevier, 69 S.W.2d 662, 334 Mo. 984; St. Louis v. Realty Co., 168 S.W. 724, 259 Mo. 140.

Roy D. Williams for Sone.

(1) The Circuit Court of Cole County had jurisdiction of the impounded fund out of which the fee to Sone was paid. The appeal did not deprive the Cricuit Court of Cole County of its jurisdiction over the fund. The court's duty was the same before as after the appeal, to-wit: To protect the fund. North British & Merc. Ins. Co. v. Thompson, 330 Mo. 1146, 52 S.W.2d 472; State ex rel. McKittrick v. American Colony Ins. Co., 80 S.W.2d 876; Atlantic Coast Line v. Florida, 295 U.S. 310; McCune v. Goodwillie, 204 Mo. 338; Ex parte Lincoln Gas Co., 256 S.W. 517; 18 C. J. 770, 774; Montell v. San Juan District Court, 7 Porto Rico, 320; Blinn v. Continental Security Redemption Co., 110 F. 265; 3 C. J., secs. 1386, 1404, pp. 1270, 1280. (2) Respondent Sone held the fund, not as circuit clerk, but as an officer of the court. His duties were not within the duties as prescribed by the statute in regard to circuit clerks. United States v. King, 147 U.S. 679; United States v. Jones, 193 U.S. 530; United States v. Van Duzee, 140 U.S. 169; Burlingame v. Hardin County, 164 N.W. 115; Board of Commissioners v. Sheets, 69 N.E. 398; Sheibley v. Hurley, 103 N.W. 1084; St. Louis Union Trust Co. v. Ry. Co., 126 S.W. 305; Eldredge v. Salt Lake County, 106 P. 939; People v. Cobb, 51 P. 523; Hammer v. Kaufman, 39 Ill. 87; S.Ct. Rule, No. 37. (3) The compensation provided for Sone was reasonable. People v. Bank of Staten Island, 116 N.Y.S. 827; Berry v. Rood, 209 Mo. 677; Weltner v. Thurmond, 98 P. 590; Colehour v. Bass, 143 Ill.App. 530; Pickett & Sexton v. School District, 193 Mo.App. 528; Railroad v. Railroad Co., 126 Mo.App. 275.

T. S. Mosby pro se.

(1) The court had jurisdiction of the impounded fund in the case of American Constitution Fire Assurance Company et al. v. R. E O'Malley, Superintendent of Insurance, and the appeal in said cause did not deprive the lower court of that jurisdiction. The lower court's duty to care for, preserve and protect the fund continued the same as before the appeal. North British & Merc. Ins. Co. v. Thompson, 330 Mo. 1146; State ex rel. Thompson v. Amer. Colony Ins. Co., 80 S.W.2d 876; Atlantic Coast Line v. Florida, 295 U.S. 310; McCune v. Goodwillie, 204 Mo. 338; Ex parte Lincoln Gas Co., 256 S.W. 517; 18 C. J., pp. 770, 774; Montell v. San Juan District Court, 7 Porto Rico, 320; Blinn v. Continental Security Redemption Co., 110 F. 265; 3 C. J. Secs. 1386, 1404, pp. 1270, 1280. (2) No statute made it the duty of respondent Sone to receive and preserve the fund in question. That duty arose as the result of the exercise of the power resting in the court to call upon him to render service to the court whether such service is specified by statute or not. In such cases the power, if...