Harrison v. Jackson County

• Decision Date: 05 July 1916
• Docket Number: No. 17931.,17931.
• Citation: 187 S.W. 1183
• Parties: HARRISON v. JACKSON COUNTY.
• Court: Missouri Supreme Court

187 S.W. 1183

HARRISON v. JACKSON COUNTY.

No. 17931.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Rehearing Denied July 18, 1916.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Allan O. Harrison against Jackson County. Judgment for defendant on plaintiff's refusal to plead further after demurrer to his amended petition was sustained, and plaintiff appeals. Affirmed.

On the 27th day of February, 1912, plaintiff filed in the circuit court of Jackson county, Mo., his amended petition, alleging that on September 22, 1908, he was duly appointed special prosecuting attorney of Jackson county, Mo., by Hon. William H. Wallace, judge of the criminal court, the regular prosecutor having refused to recognize or assist the grand jury then in session, and to perform the duties required of him in that relation; that he accepted the appointment, and in pursuance thereof duly qualified and entered upon the discharge of the duties thereto relating, devoting all of his time to same until the 12th day of December, 1908; that at divers times subsequent thereto, and prior to the institution of this action, he made demands on the county court of Jackson county to issue to him a county warrant in payment for said services, but that it refused, and still so refuses; and that he has not been otherwise compensated for any part of said service.

The amended petition is in three counts, the first framed upon the hypothesis that when the judge of the criminal court appointed him as special prosecutor, it, by reason of that act alone, acting for and in behalf of the county, agreed and promised to pay for his services at the rate of $5,000 per annum. The second count is evidently predicated upon the theory that as a special prosecutor he was entitled, under the statute, to the compensation which the statute prescribes for the regular prosecuting attorney. The third is upon the plea that the exigencies of the situation were such that the appointment of a special prosecutor was necessary and to the public good, and that he ought to therefore be compensated even in the absence of any statutory provision to that effect.

While the petition makes no reference to the facts hereafter stated, it appears that the demurrer which was filed and sustained by the court was treated by the parties and court as a plea of former adjudication, the facts in relation thereto being admitted and duly considered, and the case accordingly decided. We are asked by both parties here to so treat the pleadings, and to determine the issues upon the same theory as was presented below, and this we shall do. Thompson v. Marley, 102 Mich. 479, 60 N. W. 976; Lindley v. Railway Co., 47 Kan. 433, 28 Pac. 201; Oscanyan v. Winchester Arms Co., 103 U. S. 261, 26 L. Ed. 539.

Prior to the institution of this suit the plaintiff filed in the circuit court of Jackson county a mandamus proceeding against the judges of the county court to compel them to issue a county warrant to pay him for the identical service for which he in this suit asks recovery. He prevailed in the lower court, whereupon the case was appealed to the Kansas City Court of Appeals. That court duly and fully considered the merits of the whole case, and held that neither under the statute nor the common law could the plaintiff recover for such service. The judgment of the trial court was accordingly reversed. State ex rel. Harrison v. Patterson et al., 152 Mo. App. 264, 132 S. W. 1183.

In appellant's original brief we find the following statement which discloses the theory upon which he seeks to maintain this action. He says:

"Has appellant stated a cause of action? If the Kansas City Court of Appeals is right in their decision, appellant has not and cannot state a cause of action."

And in his reply brief, we find the following:

"If appellant is entitled to recover on the merits of this case, surely he should not be barred because the Kansas City Court of Appeals rendered an erroneous decision."

Allan O. Harrison and James M. Chaney, both of Kansas City, and James F. Green, of St. Louis, for appellant. A. L. Cooper, County Counselor, of Kansas City (M. J. O'Sullivan, of Kansas City, of counsel), for respondent.

REVELLE, J. (after stating the facts as above).

I. While this court has recently done considerable writing and its members expressed divergent views as to the extent and limitation of our power of review of the decisions of our courts of appeals on certiorari, we all yield assent to the one proposition that such courts are courts of last resort, and, when acting within their jurisdiction and not in violation of our decisions, which questions we can review only by certiorari, or when certified to us, they can without interference, decide cases as their judgment dictates, and in so...