Kansas City Sanitary Company v. Laclede County

• Citation: 269 S.W. 395,307 Mo. 10
• Decision Date: 17 February 1925
• Docket Number: 23602
• Parties: KANSAS CITY SANITARY COMPANY, Appellant, v. LACLEDE COUNTY
• Court: United States State Supreme Court of Missouri

269 S.W. 395

307 Mo. 10

KANSAS CITY SANITARY COMPANY, Appellant, v. LACLEDE COUNTY

No. 23602

Supreme Court of Missouri

February 17, 1925

Transferred from Springfield Court of Appeals.

Reversed and remanded.

Phil M. Donnelly for appellant.

(1) Instruction one on the part of the defendant, should not have been given, as there was no evidence that the payment of $ 61.40 paid the account in full; there was no evidence that the defendant rejected the remainder of said account; and the question of whether the remainder of said account was necessary or needed by the defendant, was not an issue in the case, and there was no evidence to support it. (2) Instruction two on the part of the defendant, should not have been given, for it is inconsistent with and in conflict with Instructions 1 and 3 of the plaintiff; and plaintiff's instructions correctly declared the law in this case. R. S 1919, sec. 9507. (3) The sheriff, as a county officer, had authority to order such goods as were necessary in the conduct of his office, and the county is liable for the same. Secs. 9507, 12549, 12551, R. S. 1919; Harkreader v Vernon County, 216 Mo. 696; Ewing v. Vernon County, 216 Mo. 681; Sayler v. Nodaway County, 159 Mo. 520; Kansas City Disinfecting & Mfg. Co. v. Bates County, 273 Mo. 300; Bennett v. Clark County, 201 Ill.App. 222. (4) In the absence of any order of the court to the contrary (and in the present case there was no order of the county court,) it should be presumed that the sheriff is the proper agent to represent the county in the purchase of disinfectants necessary to keep the jail in a clean and healthy condition. Frederick Disinfectant Co. v. Coleman County, 188 S.W. 270; Bennett v. Clark County, 201 Ill.App. 222. (5) The county court ratified this particular order by making a payment on the same by a county warrant in the sum of $ 61.40, according to the terms of the order, and should not now be permitted to deny liability of the order. (6) The admission of evidence of the different purchases by the sheriff of other goods, including disinfectants, during the years 1918, 1919 and 1920, which were all subsequent to the date of the order in question, was clearly an error. It would not prove or disprove whether or not the order in question was necessary at the date of its purchase, and the admission of this evidence would only tend to prejudice the jury against this plaintiff's rights in the matter.

J. H. Bowron for respondent.

Respondent's motion to dismiss this case should have been sustained, because if any account shall be presented against a county, and the same or any part thereof shall be rejected by the county court, the party aggrieved thereby may prosecute an appeal to the circuit court. Sec. 2589, R. S. 1919. Such appeal shall be taken within ten days after rejection of claim. Sec. 2590, R. S. 1919.

David E. Blair, J. All concur, except Woodson, J., who dissents, and Walker, J., absent.

OPINION

BLAIR

Action on account for goods sold and delivered. Judgment was for defendant in the Circuit Court of Laclede County and, upon plaintiff's appeal, the case was sent to the Springfield Court of Appeals. That court properly transferred the case to this court, upon the ground that Laclede County is a party. The case fell to one of the divisions and came to Court in Banc after a divisional opinion had been prepared, but not adopted, and was argued and submitted at the present term and such divisional opinion was rejected. Thereafter, the case was assigned to the writer.

The petition alleges in substance that, at the special instance and request of the sheriff of the defendant county, plaintiff sold and delivered to defendant county certain goods, etc., of the value of $ 240.16, plus freight, and defendant paid $ 61.40 on account thereof, and that the balance of $ 182.76 remains due and unpaid; that the prices charged were reasonable and proper; that defendant accepted and used said goods, but failed and refused to pay therefor after demand. The itemized statement of account attached to the petition, dated September 12, 1917, shows that the goods sold to defendant were scrubbing soap, insecticide and pinoleum. The terms of payment were sixty dollars every ninety days.

Defendant filed and the trial court overruled its motion to dismiss the case because of alleged want of jurisdiction in the circuit court, on the ground that the account should have been presented to the county court and, if disallowed there, the case could only reach the circuit court upon appeal.

Defendant thereafter filed its demurrer to the petition upon the grounds that said petition did not state facts sufficient to constitute a cause of action, and because the circuit court had no jurisdiction of the person of defendant or the subject of the action, and that plaintiff had no legal capacity to sue. The demurrer was overruled.

Thereupon defendant filed its answer, which was a general denial, and a plea that the sheriff of defendant county had no authority to purchase the goods or to obligate defendant to pay therefor. The trial was before a jury. It found the issues for defendant and, after unsuccessfully moving for a new trial and in arrest of judgment, plaintiff has appealed.

The first point for consideration is the question of the jurisdiction of the circuit court over the subject-matter. Defendant challenged such jurisdiction by motion to dismiss and in its demurrer. Defendant's contention is that the jurisdiction of the circuit court in such cases is derivative and not original. Sections 2589 and 2590, Revised Statutes 1919, are cited. As defendant prevailed below and the case is here upon plaintiff's appeal, the point is not here for review upon defendant's exception. However, the question of the jurisdiction of the trial court over the subject-matter of a suit is always an open one and may be raised for the first time in the appellate court.

It is said in 3 Corpus Juris, page 366, section 123: "It is a general rule that if an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court. . . . In some cases it is held that when the lower court had no jurisdiction, there is nothing to support appellate jurisdiction, and that an appeal or proceedings in error will therefore be dismissed. In most jurisdictions, however, the appellate court may in such cases entertain an appeal or writ of error for the purpose of reversing a judgment or order for want of jurisdiction and dismissing the case or directing its dismissal by the lower court."

Missouri is one of the states following the practice of entertaining the appeal in such cases for the purpose of directing the dismissal of the case for want of jurisdiction of the lower court. [St. Louis v. Glasgow, 254 Mo. 262, l. c. 285, 293; Sidwell v. Jett, 213 Mo. 601, l. c. 611; Williams v. Kirby, 169 Mo. 622, l. c. 630.]

Even if defendant is correct in its contention that the circuit court has no original jurisdiction over the subject-matter of the case, that is not a reason why the judgment against plaintiff should be affirmed. The only proper order we could make in that event would be to reverse the judgment and remand the cause to the circuit court with directions to dismiss the same. Merely because plaintiff misconceived the proper forum in which to commence its action, if it did, would constitute no reason why it should be foreclosed from proceeding in the proper forum.

But we are satisfied that the circuit court had original jurisdiction of the case. Section 9506, Revised Statutes 1919, provides that "all actions whatsoever against a county shall be commenced in the circuit court." This section clearly settles the jurisdiction of the circuit court, even if we were not fully justified in reaching that conclusion from a consideration of other sections of the statute to which we will refer. See Gammon v. Lafayette County, 79 Mo. 223. In that case the jurisdiction of a justice of the peace was sustained in a suit against a county. Section 5359, Revised Statutes 1879, which was an amendment of General Statutes of 1865, page 225, section 4, took away the jurisdiction of justices of the peace in actions against counties. The Gammon case was ruled upon in General Statutes of 1865, page 225, section 4, as it stood before said amendment and as carried into volume 1 of Wagner's Statutes of 1872 as section 4, page 408.

Were it not for Section 9506, Revised Statutes 1919, we are satisfied that the jurisdiction of the circuit court...