Fleming v. Anderson

• Decision Date: 14 June 1948
• Citation: 48 S.E.2d 269,187 Va. 788
• Court: Virginia Supreme Court
• Parties: FLEMING. v. ANDERSON et al. McFALL. v. MULLINS et al.

48 S.E.2d 269

187 Va. 788

FLEMING.

v.ANDERSON et al.

McFALL.

v.MULLINS et al.

Supreme Court of Appeals of Virginia.

June 14, 1948.

Error to Circuit Court, Dickenson County; Frank W. Smith, Judge.

Actions to recover salaries and emoluments of office by A. A. Fleming against J. H. Anderson and others, and by W. M. McFall against Charles P. Mullins and others. To review the judgments, the plaintiffs bring error.

Affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, SPAPLES, and MILLER, JJ.

S. H. & Geo. C. Sutherland, of Clintwood, for plaintiffs in error.

Fred B. Greear, of Norton, E. J. Sutherland, of Clintwood, and M. M. Long, of St. Paul, for defendants in error.

EGGLESTON, Justice.

These two cases involve the same questions of law, were heard together in the court below, and will be disposed of in a single opinion here.

While the sole assignment of error in each case is to the action of the trial court in sustaining a demurrer to the notice of motion for judgment, a statement of the factual background of the litigation, as disclosed by the briefs, will perhaps clarify the issues presented.

In November, 1939, A. A. Fleming and W. M. McFall were elected to the respective offices of sheriff and treasurer of Dickenson county, and duly qualified as such for the term beginning January 1, 1940, and ending December 31, 1943.

At the election held in November, 1943, both of the incumbents were unsuccessful candidates to succeed themselves for the four-year term beginning January 1, 1944, and ending December 31, 1947. On the face of the returns Fleming was defeated for the office of sheriff by J. H. Anderson, who received a certificate of election, qualified, took over and performed the duties of that office until July 16, 1946. Likewise, on the face of the returns, McFall was defeated for the office of treasurer by Charles P. Mullins, who received a certificate of election, qualified, took over and performed the duties of that office until July 16, 1946.

On July 9, 1946, in a proceeding to contest the election, the Circuit Court of Dickenson county held that, "because of the fraud and irregularities and improper conduct of the parties holding the election, and the friends and adherents of the candidates, "the purported election was void, and accordingly the certificates of election issued to Anderson and Mullins, showing them to have been elected as sheriff and treasurer, respectively, of the county, were canceled as of July 16, 1946. Thereupon, pursuant to Code, § 136, the court appointed Cowan Edwards, as sheriff, and W. B. Trivett, as treasurer, for the four-year term beginning January 1, 1944.

On February 12, 1947, Fleming filed a notice of motion for judgment against Anderson, and each of the latter's deputies, to recover the salaries and emoluments of office which the defendants had received from January 1, 1944, to July 16, 1946, amounting, it was alleged, to approximately $40,000.

About the same time McFall filed a similar notice of motion for judgment against Mullins, and the latter's deputies, to recover the salaries which the defendants had received during the same period, and alleged to be approximately $26,000.

Each of these notices of motion contained two counts. The first count was in the usual form of the money counts in an action of indebitatus assumpsit.

The next was a special count which in the Fleming v. Anderson case, read thus:

"And for this also, to wit: That in the year 1939 I was duly elected to the office of sheriff for Dickenson County, Virginia, for the term beginning January 1, 1940, and until my successor qualified, and pursuant to said election I qualified, gave the bond and entered upon the discharge of the duties of said office on January 1, 1940, and was entitled to receive the fees and emoluments thereof and have always been ready and willing from and after that date to perform the duties and receive the fees and emoluments thereof, but on, to wit, January 1, 1944, you wrongfully, fraudulently and illegally secured certificates of election to said office and intruded yourselves into the same and took upon yourselves the discharge of its duties and illegally held the same from the 1st day of January, 1944, to August, 1946, when pursuant to the judgment of the Circuit Court for Dickenson County your certificate and right to said office was canceled and annulled ab initio and during said time you have prevented me from exercising and discharging the duties of the same or receiving any emoluments thereof, but you kept and received emoluments thereof during said time; that during the period from January 1, 1944, to August 1, 1946, you enjoyed the said office, collected and converted to your use the fees and emoluments thereof, which amounted to the sum of $40,000, and by reason thereof you became indebted to me in the said sum of $40,000, and in consideration thereof undertook and promised to pay me said sum of money when thereunto afterwards requested.

"Nevertheless, you and each of you not regarding your said several promises and undertakings hath not paid to me the said several sums of money or any part thereof, although often requested so to do, to my damage in the sum of $40,000."

A similar special count was filed in the McFall v. Mullins case.

Attached to each of the notices of motion for judgment was a statement of the salaries received by the respective officers and their deputies during the period.

In each case the defendants filed a demurrer to the notice of motion for judgment, and to each and every count thereof, specifying numerous grounds of legal insufficiency which need not be detailed. Suffice it to say that they properly raised the question as to whether the plaintiff in each case was entitled to recover under the allegations of the special count.

In a written opinion the lower court reached the conclusion that the plaintiffs had not stated a legal cause of action. Consequently, the demurrers were sustained and the actions were dismissed.

To review the judgments entered in the two cases writs were awarded the plaintiffs. The parties will be referred to as they appeared in the court below.

The first assignment of error is to the action of the court in sustaining the demurrers to the first counts, which, as has been said, were in the usual form of the money counts in assumpsit.

It is, of course, well settled that a demurrer will not lie to the common countsin assumpsit. Burks Pleading and Practice, 3d Ed., § 93, p. 180; Portsmouth Cotton Oil Refining Corp. v. Oliver Refining Co., 109 Va. 513, 517, 64 S.E. 56, 132 Am.St.Rep. 924; City of Norfolk v. Norfolk County, 120 Va. 356, 360, 91 S.E. 820. Hence, the plaintiffs are technically correct in their contention that the demurrers to the notices of motion as a whole should have been overruled. Grubb v. Burford, 98 Va. 553, 555, 37 S.E. 4.

Indeed, the ruling of the trial court in this respect seems to have been due to an oversight, since the matter is not mentioned in its opinion which goes to the heart of the cases as presented in the demurrers to the special counts.

While it is true that an action of this character--to recover funds alleged to have been improperly collected by a de facto officer and due by him to a de jure officer-- may be in the form of an action for money had and received (Booker v. Donohoe, 95 Va. 359, 361, 362, 28 S.E. 584; 43 Am.Jur., Public Officers, § 392, p. 172), it is perfectly apparent here that unless the plaintiffs below are entitled to recover under their special counts, they have no case and their actions must fail. (See Booker v. Donohoe, supra, 95 Va. at page 362, 28 S.E. 584). There is no contention that they can make out a stronger case under the common counts than they have under the special counts.

Manifestly, then, if the lower court was correct in holding that the special counts do not state a cause of action, it would be quite useless, because of the technical error complained of, to remand the cases for a new trial. The litigation would merely be prolonged and yet the ultimate result would be the same.

It is the function of courts to put an end to litigation between parties, not to prolong it. With this end in view, we pass then to the merits of the actions which are raised in the demurrers to the special counts and are fully discussed in the briefs filed on both sides.

At the threshold of this phase of the case we are met with the contention that the trial court had no right, in considering the questions presented by the demurrers, to look to the terms of the final judgment entered by it in the previous contested election proceedings. There is no merit in this contention.

It is true that ordinarily a nisi prius court¹ will not take judicial notice of its records, judgments and orders in other and different cases or proceedings, even though such cases or proceedings may be between the same parties and in relation to the same subject matter. Wilson v. Wilson, 136 Va. 643, 650, 118 S.E. 270; 20 Am. Jur., Evidence, § 87, p. 105; 31 C.J.S., Evidence, § 50-c, pages 623, 624.

But it is a well-recognized exception to this rule, particularly in recent cases, that where the plaintiff refers to another proceeding or judgment, and specifically bases his right of action, in whole or in part, on something which appears in the record of the prior case, the court, in passing on a demurrer to the complaint, will take judicial notice of the matters appearing in the former case. See Frank v. Wilson & Co., Del.Sup., 32 A.2d 277, 280; Cogburn v. Callier, 213 Ala. 38, 104 So. 328, 330; Schnieder v. Decker, 144 Okl. 213, 291 P. 80, 81; Stewart v. Phoenix Nat. Bank, 49 Ariz. 34, 64 P.2d 101, 104; Hobbs v. Town of Hot Springs, 44 N.M. 592, 106 P.2d 856, 860; Slaughter v. Wright, 4 Cir., 135 F.2d 613, 615; 9 Wigmore on Evidence, 3d Ed., § 2579, p. 570, 1947 Supp., note 2.

The case now before us comes squarely within that principle, for in the special counts the plaintiffs not only...