Boggs v. Caldwell Cnty.

• Decision Date: 31 July 1859
• Citation: 28 Mo. 586
• Parties: BOGGS, Respondent, v. CALDWELL COUNTY, Appellant.
• Court: Missouri Supreme Court

28 Mo. 586

BOGGS, Respondent,

v.CALDWELL COUNTY, Appellant.

Supreme Court of Missouri.

July Term, 1859.

1. A county court has the power to order an index to be made to the books in which deeds are recorded and to allow a reasonable compensation therefor out of the county funds.

2. In order that such an order may be valid and binding upon the county, it is not, it seems, necessary that it should be entered of record. A verbal direction from the justices on the bench or from the presiding justice would be sufficient.

3. At the May term, 1857, of the Caldwell county court an account was presented for allowance against the county. The account was disallowed. At the March term, 1858, by leave of court, testimony touching the same account was introduced. The court having heard the testimony, “adhered to its former decision.” An appeal was then taken to the circuit court. Held, that the appeal was well taken; that the rejection of the claim at the May term, 1857, was not like a judgment in a suit between individuals which the court could not open at a subsequent term; that the county court could waive an advantage the county might have.

4. The act of the general assembly of January 21, 1857, (Sess. Acts, 1857, p. 746,) directing the county court of Caldwell county to audit and allow one W. F. Boggs, for services rendered in making an index of deeds and mortgages of record in said county at the rate of ten cents for each name, and to draw their warrant in favor of said Boggs for the sum thus ascertained to be due, and declaring that it shall be the duty of the county treasurer to pay said warrant out of any money appropriated for county expenditures, is unconstitutional and void.

Appeal from Caldwell Circuit Court.

At the May term of 1857 of the Caldwell county court, Wilbur F. Boggs presented for allowance against the county an account for three hundred and ninety-six dollars and ten cents for making an index to the record of deeds. The account was “disallowed.” At the March term, 1858, he asked and obtained leave to introduce testimony touching the same account. The court having heard the testimony adhered to its former decision. An appeal was prayed and granted to the circuit court. At the trial the plaintiff proved by a witness that the court directed the index to be made. The defendant objected to the admission of this testimony on the ground that the records of the court should be introduced to prove such an order. An act of the general assembly approved January 21, 1857, was introduced against the objection of the defendant. Said act is as follows: “Sec. 1. The county court of Caldwell county shall audit and allow Wilbur F. Boggs, for services rendered in making a direct and inverted index of deeds and mortgages recorded and of record in said county, at the rate of ten cents for each name. Sec. 2. The county court of said county shall draw their warrant in favor of said Wilbur F. Boggs for the sum thus ascertained to be due him; and it shall be the duty of the county treasurer of said county to pay said warrant out of any money appropriated for county expenditures.” The cause was submitted to the court without a jury. The court found for the plaintiff and allowed him one hundred and fifty dollars.

E. B. Ewing, (attorney general,) for appellant.

I. The plaintiff had no legal demand against the county. The court made no order directing the index to be made. If it had done so, it would have been a nullity for want of authority of law. (26 Mo. 276.) It is the duty of the clerk to make and keep an index of deeds, &c. The claim is res adjudicata. The decision of the county court in May, 1857, is conclusive. No appeal was allowable from it; if allowable, it was not taken in time. If the county was liable, it was only so liable by virtue of the act of the legislature read in evidence. That act is unconstitutional. It was an unconstitutional interference with the administration of justice. (State v. Fleming, 7 Humph. 183; The State v. Sloss, 25 Mo. 293; 2 Pet. 657; 9 Cranch, 43.) It also took private property for public use without making any provision for compensation. The counties are corporations having rights of property. The act is also retrospective. (2 McLean, 212; 10 N. H. 387.)

Gardenhire, for respondent.

I. The county court had the right to employ plaintiff to make out the index. The rejection of the plaintiff's account at May term, 1857, is no bar to his recovery. It was not interposed as such at the March term, 1858. (See County of Boone v. Corlew, 3 Mo. 10.) No specific objection was made to the admission of the act of the legislature. (23 Mo. 438.) The act had no effect whatever in the decision of the case. No instruction was asked.

NAPTON, Judge, delivered the opinion of the court.

There can be no reasonable doubt, we think, that the county courts have the power to order an index to be made to the books of recorded deeds, and to allow a reasonable compensation for the work out of the county funds. Although it is the duty of the recorders to keep up their indexes without any compensation from the county, and their compensation is provided by law to come from the persons having their deeds recorded, yet in the course of time it may happen that these books become unfit for use...