Burkarth v. Stephens

• Decision Date: 05 February 1906
• Citation: 117 Mo. App. 425,94 S.W. 720
• Parties: BURKARTH v. STEPHENS et al.
• Court: Missouri Court of Appeals

94 S.W. 720

117 Mo. App. 425

BURKARTH v. STEPHENS et al.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

On Rehearing April 2, 1906.

1. JUDGMENT—EQUITABLE RELIEF—FRAUD.

Where a county court granted a dramshop license on an insufficient showing, but purposely made up the record so that the lack of jurisdiction to issue the license did not appear, thereby prohibiting review by certiorari, equity had jurisdiction to set aside the judgment granting the license.

2. PARTIES—MISJOINDER—WAIVER OF OBJECTION.

A defendant's failure to demur, on the ground of misjoinder of parties in making him a defendant, is a waiver of the objection.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Suit by Fred Burkarth against W. A. Stephens and others. From a decree in favor of defendants, plaintiff appeals. Reversed.

James A. Kemper, for appellant. C. E. Morrow and J. W. Suddath, for respondent.

ELLISON, J.

This proceeding is a bill in equity, whereby the plaintiff seeks to set aside and annul a certain judgment or order of the county court of Johnson county granting a dramshop license to defendant Garrison. The other defendants are the members of the county court of that county granting the license. The cause was taken by change of venue to the La Fayette county circuit court, where, at the beginning of the trial, the defendants objected to any evidence being received on the ground that the petition did not state any ground for relief, or, in other words, did not state a cause of action. That objection was sustained by the trial court, and plaintiff took a nonsuit with leave, etc. His motion to set aside the nonsuit being overruled, he comes here for relief.

The material portions of the petition are that plaintiff is a citizen of the city of Warrensburg, and that he owns real and personal property in a certain block in said city, and that he suffers damage and injury to his property by reason of the county court granting a dramshop license to defendant Garrison to sell intoxicating liquors in said block. The petition alleges that, on the 20th of April, 1904, Garrison filed with the clerk of said court his application and petition for license containing 17 names. That there were 30 resident taxpaying citizens of Warrensburg (whose names are set out), who owned property in the block, who were entitled to be, and should have been, taken into consideration in passing upon the petition for license. That, in passing on the petition for license, the court excluded 3 petitioners, leaving only 14 to be considered in determining whether a majority had signed. The petition then stated the names of 4 others that were alleged not to be qualified petitioners, thus leaving only 10 qualified names on the petition. The petition then alleges that the county court knew all these facts. That they knew that the names of the qualified petitioners on the petition did not compose a majority of the block. But, desiring to favor Garrison, they "knowingly, willfully, wrongfully, fraudulently and misfeasantly took cognizance of his application" and granted him a dramshop license. That they set out in the order or judgment that the court found that the petition was signed by a majority of the assessed taxpaying citizens and guardians of minors owning property in said block, and that Garrison was a lawabiding taxpaying citizen above the age of 21 years. It is then charged that the county court wrongfully and willfully counted the names of two persons on said petition for license, who had withdrawn therefrom. That, when said application for license was before the county court, it was requested to determine what names were considered to be legal petitioners, but that the defendants knowingly, wrongfully, and on purpose, refused to determine and designate who were the assessed taxpaying citizens and guardians of minors owning property in the block and entitled to be counted as petitioners. That said court willfully and wrongfully refused to make any entries of record, from which it could be determined by what means or method it acquired the right to grant said license; thereby leaving the plaintiff without any remedy at law by which to review and correct the errors committed and the wrongs done. It is alleged that the license was renewed on said petition on the 9th of November, 1904. It is then charged that, the acts and conduct of the defendants, in hearing, considering, and granting said license to the defendant J. W. Garrison, as well as renewing the same for another license term, was an act of misfeasance in office, was wholly without authority of law and void, and should be set aside; that neither an appeal nor a writ of error lies from such proceedings, and the defendants, the said justices of the county court, did willfully, wrongfully, and on purpose, and with the view and purpose of preventing the same, so conduct, direct, and record the proceedings had by them in said matter and cause, as to prevent a review thereof by certiorari, and thereby rendered the same unavailing. It is charged that Garrison was operating a dramshop under the license so obtained. It is then prayed that the judgment or order granting the license be set aside and annulled and the license canceled.

In order to better understand the scope of the petition, it is perhaps well enough to state that the county court in granting a license acts judicially, and that from its decision there is no appeal. That the only remedy is by writ of certiorari, and that such writ only takes the face of the record to the superior court for review, and that, if the face of the record appears regular, there can be no interference. State ex rel. v. Moniteau Co. Ct., 45 Mo. App. 387; State ex rel. v. Fort, 107 Mo. App. 328, 81 S. W. 476. Having these things in view, we see the object and purpose in the petition in the charges therein made. It alleges that the county court knew that there was not a majority petition for license. It knew that several of those appearing thereon were not qualified petitioners. That, for the purpose of preventing any interference with their illegal conduct, they refused to find who were, and how many there were of, qualified petitioners in the block. That they refused to find how many of those signing the petition for license were qualified petitioners. That they refused to let anything get into the record, from which it would appear how they made their finding, and that all this was done wrongfully and willfully, for the purpose of leaving plaintiff and others without a remedy. It is charged that the conduct of defendants was a misfeasance in office, and was without authority. That neither appeal nor writ of error lies, and that defendants willfully, wrongfully, and on purpose to prevent a review of the proceedings by certiorari, did the things charged.

The defendants at the oral argument, and in briefs, took the position, in support of their defense, that the members of the county court are judicial officers, and that in the matter of granting the license they acted judicially. That judges cannot be held civilly liable to an action for their judgments, even though they act corruptly, fraudulently, and unlawfully, and willfully render a wrong judgment. That the only remedy against such officials is by removal from office `or indictment. The liability of judicial and quasi judicial officers is discussed by our Supreme Court in Stone v. Graves, 8 Mo. 148, 40 Am. Dec. 131, and Pike v. Megoun, 44 Mo. 491. Interesting and instructive reviews of the subject are found in Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646, and Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80. In the former, a judge was sought to be held liable to an attorney, whose name he had stricken from the roles, on account of the attorney having threatened him, during a recess of the court, with personal chastisement for an insult offered during the trial of Surratt for the murder of President Lincoln. In the latter, an action was brought against a judge of a United States Circuit Court for a sentence wrongfully and illegally pronounced against the plaintiff. In each case it was held that the action would not lie. In the latter, various statements of the rule as made by different adjudications are given, and the court adds to these statements that, "To be free from liability for the act, it must have been done as a judge, in his judicial capacity;...