Bowman v. Phelps County

• Decision Date: 12 March 1931
• Docket Number: 4823
• Citation: 36 S.W.2d 414
• Parties: BOWMAN v. PHELPS COUNTY.
• Court: Missouri Court of Appeals

36 S.W.2d 414

BOWMAN v. PHELPS COUNTY.

No. 4823

Court of Appeals of Missouri, Springfield

March 12, 1931

Appeal from Circuit Court, Phelps County; J. R. Bowron, Judge.

Action by S. R. Bowman against Phelps County. Judgment for defendant, and plaintiff appeals.

Case transferred to Supreme Court.

E. W Allison, of Rolla, for appellant.

Lorts & Breuer, of Rolla, for respondent.

OPINION

COX P. J.

The plaintiff in this case presented a bill against Phelps county to the county court of that county for allowance and payment for services as county school attendance officer. The county court refused to allow the claim. The plaintiff appealed to the circuit court of Phelps county, where, upon a trial before the court without a jury, the court found for defendant. Plaintiff filed affidavit for appeal, and appeal was granted to this court.

Under the Constitution of this state (Const. art. 6, § 12, as amended by Amendment 1884, § 5), when a county is a party to a suit, the appellate jurisdiction is in the Supreme Court and the Court of Appeals is without jurisdiction. Meekins v. Sullivan County, 154 Mo. 136, 55 S.W. 145; Corbin v. Adair County, 171 Mo. 385, 71 S.W. 674.

No motion to transfer has been filed by either party in this court, but both sides have briefed the case on its merits and nothing is said about the jurisdiction of this court to determine the cause on this appeal, but we conceive it to be our duty to examine that question for ourselves. Jurisdiction cannot be conferred on the appellate court by agreement of the parties nor by estoppel or any act or omission of the parties. State v. Meyer, 246 Mo. 596, 152 S.W. 331; Dubowsky v. Binggeli, 258 Mo. 197, 167 S.W. 999; Mike Berniger Moving Co. v. O’Brien (Mo. Sup.) 234 S.W. 807, 812.

To constitute the county a party within the constitutional provision fixing appellate jurisdiction in the Supreme Court, the county must be a party to the record. The county being the real party in interest is not sufficient. State, to use of Nee, v. Gorsuch, 303 Mo. 295, 260 S.W. 455; State ex rel. v. McClanahan et al. (Mo. Sup.) 273 S.W. 1059; Shelley v. Mo. Commission for the Blind, 309 Mo. 612, 274 S.W. 688, 689; State ex rel. Stipp v. Cornish et al. (Mo. Sup.) 19 S.W.2d 294; City of St. Louis (Nolte, City Comptroller, Intervenor) v. Dietering et al. (Mo. Sup.) 19 S.W.2d 882.

When an account is presented to the county court for allowance and payment out of county funds, as was done in this case, the county is a party to the record, and, if an appeal be taken to the circuit court and from that court to a higher court the appeal should go to the Supreme Court. Hethcock v. Crawford County, 200 Mo. 170, 98 S.W. 582; State, to...