Callaway County v. Henderson, County Clerk

• Decision Date: 08 June 1897
• Citation: 41 S.W. 241,139 Mo. 510
• Parties: Callaway County, Appellant, v. Henderson, County Clerk
• Court: Missouri Supreme Court

41 S.W. 241

139 Mo. 510

Callaway County, Appellant, v. Henderson, County Clerk

Supreme Court of Missouri, First Division

June 8, 1897

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded.

D. H Harris and N. D. Thurmond for appellant.

(1) If the clerk retained money belonging to the county and refused afterward to make correct returns the county was thereby defrauded, and the defendant was guilty of fraud in procuring the orders of the county court approving his reports. Constitution of Missouri, art. 9, sec. 13; R. S. 1889, secs 5009 to 5013. The court in trying the case proceeded on the theory that there was no fraud in procuring the orders of the county court approving the returns, unless the fees were omitted with the intention and for the purpose at the time of filing same of defrauding the county. (2) It matters not what defendant's intentions were in making false returns, if the county court were deceived thereby and the county was defrauded of its revenue, his false returns operated as a fraud, and he can not be permitted to reap any benefit from them. Clarkson v. Creely, 40 Mo. 114; Cooley on Torts, p. 498; Davis v. Heard, 44 Miss. 50; Rimer v. Dugan, 39 Miss. 477; Story, Eq. Juris sec. 193. (3) "A court of equity gives relief from unconscionable contracts on the ground of mistake as well as of fraud. Cooley on Torts, p. 499. (4) Fraud is made out by marshaling the circumstances surrounding the transaction, and deducing therefrom the fraudulent purpose, when it manifestly appears. Cooley on Torts, p. 475; Hopkins v. Sievert, 58 Mo. 201; Waddingham's Ex'rs v. Loker et al., 44 Mo. 132. (5) The circuit court held that the orders of the county court approving the clerk's returns were judgments, and that the county court could not review or change the same. Callaway County v. Henderson, 119 Mo. 32; Biddle v. Ramsey, 52 Mo. 153. (6) The defendant having planted himself upon these judgments of the county court based upon his own false returns, unless equity interferes, there is no remedy. Evans v. Railroad, 64 Mo. 453. (7) In this case, as shown by the testimony of defendant, there are large amounts of fees collected by defendant which he did not report. There has never been a settlement with the county court for a single one of the seven years. There are accounts to be settled and adjusted. If there is a remedy at law it appears neither "plain," "adequate" nor "complete." Biddle v. Ramsey, 52 Mo. 159; Pomeroy v. Benton, 57 Mo. 531; Real Estate Inst. v. Collonious, 63 Mo. 290. (8) It was the acts of defendant that prevented the orders being made to pay over the surplus. Doss v. Davis, 60 Mo. 300; Stewart v. Caldwell, 54 Mo. 536; Mayberry v. McClurg, 51 Mo. 256. (9) Defendant admits in his testimony that he omitted to report the fees set out in the petition and that it was done by mistake. R. S. 1889, sec. 2097; Wells et al. v. Short et al., 57 Mo. 56; Fischer v. Max, 49 Mo. 404; Turner v. Railroad, 51 Mo. 501. (10) The court may at any time before final judgment in furtherance of justice, amend any pleading by inserting other allegations material to the case or when such amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. R. S. 1889, sec. 2098; Blair v. Railroad, 89 Mo. 383; Bennett v. McCause, 65 Mo. 195; Weber v. Hannibal, 83 Mo. 262; State v. Shelby, 75 Mo. 482. (11) The circuit court failing to set aside the judgments of the county court on the ground of fraud, should have heard plaintiff on the counts at law in the petitions; should have found the amount due the county from the defendant and should have ordered him to pay the same into the county treasury. Callaway County v. Henderson, 119 Mo. 32; State ex rel. Hickory County v. Dent, 121 Mo. 162; Clarkson v. Creely, 40 Mo. 114; Nelson v. Barnett, 123 Mo. 564.

Bailey & Tincher, I. W. Boulware and T. B. Taylor for respondent.

(1) It is conceded by the appellant that the quarterly and annual statements and reports were and had the full force and effect of judgments. This being true, the same can not be set aside or held for naught unless the evidence shows conclusively that they were obtained and procured by fraud. In this case no fraud, collusion or mistake of fact was shown. McGindley v. Newton, 75 Mo. 115; Smith v. Sims, 77 Mo. 269; State ex rel. v. Ewing, 116 Mo. 129. (2) Fraud can not be presumed, but must be proved. (3) The fraud for which a judgment may be vacated or set aside in equity must be in the procurement of the judgment. Freeman on Judgments [3 Ed.], sec. 487. (4) The issue as to whether or not the judgments were procured by fraud, misrepresentation or concealment was submitted to the jury. The verdict was for respondent. (5) Before the judgments can be set aside, the evidence must conclusively show that they were procured by fraud or collusion. Mayberry v. McClurg, 51 Mo. 256; Stewart v. Caldwell, 54 Mo. 539. (6) If there was error it was an error of law in allowing respondent fees and compensation not authorized by law. An error of law on part of the county court can not be corrected in this proceeding. State ex rel. v. Ewing, 116 Mo. 129; State ex rel. v. Shipman, 125 Mo. 436. (7) The settlements made by the respondent with the county court are binding on the county. State ex rel. v. Shipman, 125 Mo. 436. (8) Appellant having conceded that the orders of the county court, sought to be set aside, have the force and effect of judgments, it is at once apparent that no action at law could be maintained. (9) The so-called legal counts are but companion pieces to the other counts in the petitions. They simply present the allegations of fraud and the remedy sought in a slightly differing form. (10) The court committed no error in not allowing plaintiff to amend its petition after the issues had been formulated and submitted to the jury and a verdict found. This would have been the fourth petition -- the first two having been on demurrer, found to be insufficient. (11) To have changed the cause of action from one for fraud and misrepresentation to "mistake" would have required a totally different trial and different instructions to the jury on the part of defendant. (12) If there was a "mistake" of law, the settlements (or judgments) can not be set aside or avoided on account thereof. State ex rel. v. Ewing, 116 Mo. 129; Moore v. McCullough, 8 Mo. 401. (13) The county court is the only tribunal which has the power and authority to adjust and settle with the clerk. (14) If the court fails to act in the manner and at the time required by the statute, then it loses all power in the premises. Cunningham v. Railroad, 61 Mo. 33; Railroad v. Campbell, 62 Mo. 585; State ex rel. v. Harris, 96 Mo. 29; Sturgeon v. Hampton, 88 Mo. 203. (15) Such settlements being judgments are a full and complete bar to an action at law. Och v. Railroad, 130 Mo. 27; Vandervelden v. Railroad, 61 F. 54; Blair v. Railroad, 89 Mo. 383. (16) The rule of law is that a judgment can only be opened up for fraud or mistakes of fact. Moore v. McCullough, 8 Mo. 401; State ex rel. v. Ewing, 116 Mo. 129; Marion County v. Phillips, 45 Mo. 75; State ex rel. v. Roberts, 60 Mo. 402. (17) The whole matter is res adjudicata. County v. Henderson, 119 Mo. 32.

OPINION

Macfarlane, J.

Defendant Henderson was the clerk of the county court of Callaway county for two terms, the first commencing January 1, 1883, and ending January 1, 1887; and the second commencing January 1. 1887, and ending January 1, 1891. During the two terms he made quarterly settlements with the county court of fees received by him during the previous quarter; which settlements were examined and approved by the court. The returns made by the clerk of fees received for each quarter only included such as were collected for notarial work performed by him, and did not generally include the fees provided by law as compensation for work pertaining to the affairs of the county and State. These returns or statements purported to include all the fees collected and some of them, but not all, were verified by the affidavit of the clerk, and were approved by an order of the county court.

This suit was commenced in January, 1892. The petition contains a count in equity for each quarter of defendant's services as clerk. The count for the last quarter of the first year of service, after stating the election and qualification of defendant as clerk of said county, his duty in respect to making quarterly returns to the county court, and of paying to the treasurer the excess of fees collected over the salary allowed by law and amount paid to his deputies and assistants is as follows:

"Plaintiff further states that defendant as said clerk made a pretended return to the county court aforesaid on the 9th day of February, 1884, purporting to give the fees received by him as said clerk for the quarter (as stated in his said report) ending February 1st, 1884, which return shows the total amount of fees collected by defendant for said time to be $ 14.50.

"That said report was not sworn to as required by law. Plaintiff alleges that said report was false and fraudulent in this, to wit: That the defendant collected from the county of Callaway fees for his services as said clerk which he failed to report as follows:

Warrant No. 287, Aug. 10, '83, summoning road jury

$ 1 50

Warrant No. 402, Nov. 15, 1883, tax books

551 60

Warrant No. 403, Nov. 15, 1883, school tax books

278 00

Warrant No. 404, Nov. 15, 1883, abstract tax books

13 80

Warrant No. 405, Nov. 15, 1883, fees, etc.

577 70

Warrant No. 455, Jan. 8, 1884, salary and fees

560 30

Total fees paid by county during last quarter and not reported

by defendant in any return made

$ 1,982 99

That defen...