City of Miller v. Sherman, 6170.

• Decision Date: 25 March 1940
• Docket Number: No. 6170.,6170.
• Citation: 139 S.W.2d 1114
• Parties: CITY OF MILLER v. SHERMAN.
• Court: Missouri Court of Appeals

139 S.W.2d 1114

CITY OF MILLER v. SHERMAN.

No. 6170.

Springfield Court of Appeals. Missouri.

March 25, 1940.

Rehearing Denied May 15, 1940.

Appeal from Circuit Court, Lawrence County; Emory E. Smith, Judge.

"Not to be published in State Reports."

Action by the City of Miller against C. C. Sherman to recover a sum which had allegedly been wrongfully paid to defendant by plaintiff. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Charles E. Ginn, of Miller, for appellant.

Rex V. McPherson and Robert Stemmons, both of Mount Vernon, for respondent.

FULBRIGHT, Judge.

This cause was instituted in the justice court, in and for Lincoln Township, Lawrence County, on the 19th day of August, 1936, the purpose of which was to recover from defendant the sum of $75, alleged to have been wrongfully paid to him by plaintiff. Judgment by default was rendered in favor of plaintiff, whereupon defendant appealed to the circuit court of Lawrence County. He there filed an answer in the nature of a general denial and the cause was tried by a jury resulting in a verdict and judgment for defendant, from which judgment plaintiff has duly appealed to this court.

The petition herein, omitting caption and signature, is as follows: "Plaintiff is and was at all times mentioned a municipal corporation, formed under the general laws of the State of Missouri; that C. C. Sherman caused three warrants to be drawn on the plaintiff in the amount of twenty-five dollars each, on the dates May 1, 1934, May 7, 1935, May 5, 1936, respectively; that the same was contrary to law as set out in Section No. 6969, Revised Statutes of Missouri, 1929 [Mo.St.Ann. § 6969, p. 5724]; and that the warrants were wrongfully paid out; that thereby defendant became indebted to plaintiff and liable to pay back to plaintiff the sum of seventy-five dollars, for which, with costs, plaintiff prays judgment."

The undisputed evidence shows that plaintiff was elected Mayor of the City of Miller, in the April election, 1933, to fill out an unexpired term of one year; that he duly qualified and subscribed to the oath of office; that thereafter he was re-elected in April, 1934, to serve for a full term of two years, duly qualified and served for this full term. It appears from an ordinance of the City of Miller that an annual salary of $25 is provided for the Mayor and that defendant was paid $25 each year for the three years he served as such. There were no contests and no controversy over defendant's right to hold the office during his incumbency. At the time of his election and re-election he was indebted to the City of Miller thirty-five cents for personal taxes and five dollars for Merchant's tax, which were delinquent; that sometime after he retired from office, demand was made for these taxes and they were paid by the defendant. Thereafter, plaintiff demanded of defendant the return of the $75 salary paid him, which was refused. It appears that defendant performed all the duties conferred upon the Mayor of said city during the period of his incumbency, and that there has been no right, title or claim to the office asserted by any other person at any time.

Assuming that the fact that defendant was indebted to plaintiff for delinquent taxes at the time he was first elected, and at the time he was re-elected Mayor, constituted a disqualification under the undisputed facts as heretofore set forth, yet he was a de facto officer. He was in possession of the office and discharged all the duties pertaining thereto under color of right. This right was never questioned during his incumbency. It has been repeatedly held in this state that one in possession, under color of title, so as to constitute him a de facto officer, can by mandamus, compel payment of the salary. State ex rel. Kansas City v. Coon, 316 Mo. 524, ...