Maxwell v. Andrew County, 36807.

• Decision Date: 04 January 1941
• Docket Number: No. 36807.,36807.
• Parties: JESS PETER MAXWELL and NATIONAL SURETY CORPORATION, a Corporation, v. ANDREW COUNTY, Appellant.
• Court: Missouri Supreme Court

146 S.W.2d 621 JESS PETER MAXWELL and NATIONAL SURETY CORPORATION, a Corporation,
v.
ANDREW COUNTY, Appellant. No. 36807. Supreme Court of Missouri. Division One, January 4, 1941.

[146 S.W.2d 622]

Appeal from Andrew Circuit Court. — Hon. R.B. Bridgeman, Judge.

AFFIRMED AS TO NATIONAL SURETY CORPORATION AND REVERSED AND REMANDED AS TO OTHER PARTIES.

[146 S.W.2d 623]

J. Harry Latham and Fred Maughmer for appellant.

(1) The compensation of a sheriff in Missouri, during 1934 and 1935, was regulated solely by statute, and a county court was entirely without legal authority to pay additional compensation, either for services or for expenses for work done within the scope of his official capacity, and the burden is on the officer to show his right to retain the excess funds over his compensation as established by law. The rendition of services by a public officer (sheriff) is deemed to be gratuitious, unless a compensation therefor is provided by statute. State ex rel. v. Allen, 187 Mo. 560; State ex rel. Troll v. Brown, 146 Mo. 401; King v. Riverland Levee Dist., 218 Mo. App. 490, 279 S.W. 195; Nodaway County v. Kidder, 129 S.W. (2d) 857; State ex rel. Wedenking v. McCraken, 60 Mo. App. 565; Jackson County v. Stone, 168 Mo. 577. (2) The duties performed by appellee and his deputy sheriffs, for which the additional fees or salary or mileage was paid, were with reference to matters pertaining to and relating to his official duties as sheriff of Andrew County and said services were within the scope of said official duties. Public policy requires that a public officer be denied additional compensation for performing official duties. Edwards v. Kirkwood, 162 Mo. App. 576, 142 S.W. 1109; Robinson v. Huffaker, 23 Idaho, 173, 129 Pac. 334; Indianapolis v. Tompkin, 62 Ind. App. 125, 112 N.E. 833; Nodaway County v. Kidder, 129 S.W. (2d) 857. (3) A Missouri county court is a court of record, and for its contracts, even within the scope of its authority, to be valid or binding, must be entered of and spread upon the official court records, and it is error to receive oral evidence from former members of the court as to a parol contract allegedly made by them, which was never reduced to writing or spread upon the official records, particularly when the alleged contract provided for the making of illegal payments to an elected public official. The approval and payment of illegal claims by a Missouri county court does not make same res judicata or binding upon the county. Art. 6, Sec. 36, Mo. Const.; 15 C.J., pp. 653, 657; State ex rel. v. Diemer, 255 Mo. 336; Nodaway County v. Kidder, 129 S.W. (2d) 857. (4) The charging, exacting, and receiving of illegal payments by a sheriff from a Missouri county and his refusal to return same is not "faithful performance of duty," and the sheriff and his sureties are responsible under an official bond conditioned upon "faithful performance of duty." For all civil purposes, the acts of deputy sheriffs are the acts of the sheriff. 46 C.J. 1030, sec. 285; Russell v. Moore, 19 Mo. 369; Putnam County v. Johnson, 259 Mo. 73; Nodaway County v. Kidder, 129 S.W. (2d) 857; 6 Bacon, Sheriff, 156; 57 C.J. 797-9. (5) Where the pleadings and parties are in substantial agreement as to the facts shown by the account involved, it is error for a referee to be appointed and defendant denied the right of trial by jury. Sec. 976, R.S. 1929; Creve Couer Co. v. Tamm, 138 Mo. 385; Buchanan v. Rechner, 333 Mo. 634, 62 S.W. (2d) 1071. (6) There is no provision of law authorizing or permitting a county court to compensate a sheriff or deputy sheriff for delivering notices of a general election to the selected judges of the election, and in 1934-35, the Statutes of Missouri strictly forbade the allowance of any "fee or fees in any criminal proceeding" except those specifically enumerated and set forth in the statutes. Secs. 11791, 11792, 11793, R.S. 1929.

G.C. Sparks, K.D. Cross, D.A. Murphy, Charles B. Turney and Harding, Murphy & Tucker for respondents.

(1) The appeal herein should be dismissed, or the judgment affirmed, because — (a) Appellant's abstract of the record fails to set forth so much of the record as is necessary to a complete understanding of all the questions presented for decision; Omission of the pleadings. State ex rel. Dilliner v. Cummins, 338 Mo. 609, 92 S.W. (2d) 607; Werminghaus v. Eberle, 81 S.W. (2d) 608; Eads v. Vollmer, 38 Mo. 357; Sedgwick County, Kan. v. Newton County, Mo., 144 Mo. 302, 46 S.W. 163; Werth v. Frye, 258 Mo. 578, 167 S.W. 972; Rozier v. Nations, 178 S.W. 741; State ex rel. Robinson v. Wright, 85 S.W. (2d) 561. Omission of evidence. Aulgur v. Strodtman, 329 Mo. 738, 46 S.W. (2d) 172; Redler v. Travelers Ins. Co., 342 Mo. 677, 117 S.W. (2d) 241. Omission of referee's report. Martin v. Martin, 218 Mo. App. 617, 266 S.W. 336; Howard County v. Baker, 119 Mo. 407. Omission of motion for new trial. Cornett v. Lansaw, 243 S.W. 93; Simcoe Realty Co. v. Lemp Brewing Co., 247 Mo. 31, 152 S.W. 31; State v. Griffin, 98 Mo. 672, 12 S.W. 358; Arnold v. Boyer, 108 Mo. 310, 18 S.W. 917; Ryan v. Growney, 125 Mo. 474, 28 S.W. 189; State v. Revely, 145 Mo. 660, 47 S.W. 787; Phillips v. Jones, 176 Mo. 328, 75 S.W. 920; State v. Herron, 199 Mo. 159, 97 S.W. 878; Blanchard v. Dorman, 236 Mo. 416, 139 S.W. 395; Rose v. Township Board, 163 Mo. 396, 63 S.W. 698; State v. Ruck, 194 Mo. 428, 92 S.W. 706; Harding v. Bedoll, 202 Mo. 625, 100 S.W. 638; Stark v. Zehnder, 204 Mo. 442, 102 S.W. 992; Betzler v. James, 227 Mo. 387, 126 S.W. 1007. Omission of bill of exceptions. Bakersfield News v. Ozark County, 338 Mo. 519, 92 S.W. (2d) 603; Owens v. Mathews, 226 Mo. 77, 125 S.W. 1100; Parkyne v. Churchill, 246 Mo. 109, 151 S.W. 446; Ford v. Thayer-Moore Brokerage Co., 197 S.W. 339; Bailey v. Nichols, 70 S.W. (2d) 1103; Crowell v. Metta, 253 S.W. 205; Coffield v. Lindell, 1 S.W. (2d) 848; Lamonte Bank v. Crawford, 13 S.W. (2d) 1101. (b) Appellant's brief violates Rule 15 of this court, in that — The errors claimed to have been committed by the trial court are not alleged: Thompson v. Richardson, 12 Mo. 976; Berg v. Bishop, 39 Mo. 356; Nevins v. Gilliland, 234 S.W. 818; Davis v. Barada-Ghio Real Est. Co., 163 Mo. App. 328, 143 S.W. 1108; Seewald v. Gentry, 220 Mo. App. 367, 286 S.W. 445; State ex rel. Shipman v. Allen, 144 Mo. App. 234, 128 S.W. 809; Cholet v. Phillips Petroleum Co., 71 S.W. (2d) 799; Watkins v. Spears Ship by Truck, 72 S.W. (2d) 818; Le Clair v. Le Clair, 77 S.W. (2d) 862; Diamant v. Stein, 116 S.W. (2d) 273; Jeck v. O'Meara, 122 S.W. (2d) 897. Appellant's brief does not contain a statement of the grounds on which the jurisdiction of this court is invoked: Rule 15, as amended. Appellant's brief does not contain a fair and concise statement of the facts of the case without reiteration, statements of law, or argument: Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 490; Crockett v. Kansas City Rys. Co., 243 S.W. 905. The statement of the points relied on in appellant's brief contains mere abstract principles of law, having no relation to the judgment of the court below or to the proceedings in which the judgment was rendered. Clay v. Owen, 93 S.W. (2d) 916. (2) Neither the sheriff nor the surety on his bond is liable to the the county for the payments made to the sheriff, and his deputies, for the reason that such payments were made to reimburse the sheriff, and his deputies, for expenses lawfully incurred. Secs. 11514, 11518, R.S. 1929; Boone County v. Todd, 3 Mo. 140; Ewing v. Vernon County, 216 Mo. 681, 116 S.W. 518; Harkreader v. Vernon County, 216 Mo. 696; Motley v. Pike County, 233 Mo. 42, 135 S.W. 39; Buchanan v. Ralls County, 283 Mo. 10, 222 S.W. 1002; State ex rel. Buder v. Hackmann, 305 Mo. 343, 265 S.W. 532. (3) If the sheriff, and his deputies, incurred the bills in going to, and returning from, places where reported violations of law had occurred, they did so, in their individual, rather than their official, capacities, for which the surety on the sheriff's bond can, in no event, be held liable. Humphrey v. Ownby, 104 S.W. (2d) 398; Clement v. Dunn, 114 Cal. App. 60, 299 Pac. 545; Usrey v. Yarnell, 188 Ark. 804, 27 S.W. (2d) 988; McVea v. Day, 6 La. App. 382; People v. Beach, 49 Colo. 516, 113 Pac. 514; Williams v. Priddy, 188 Ark. 137, 64 S.W. (2d) 553; Furlong v. State, 58 Miss. 717; Hughes v. Board of County Commissioners of Oklahoma City, 50 Okla. 410; Shelton v. State, 62 Okla. 105; City of Butte v. Bennetts, 149 Pac. 92; Edwards v. Kirkwood, 162 Mo. App. 576, 142 S.W. 1109; Robinson v. Huffaker, 23 Idaho, 173, 129 Pac. 339; Indianapolis v. Tompkin, 62 Ind. App. 125, 112 N.E. 833; Nodaway County v. Kidder, 129 S.W. (2d) 857. (4) In no event can the surety on the official bond of the sheriff be held liable for the payments made to the sheriff, and his deputies, for the reason that the sheriff, his deputies, and the county court, in good faith, computed the payments upon the basis that they honestly believed the law permitted. State v. Gomer, 101 S.W. (2d) 57; Art. VI, Sec. 56, Mo. Const.; Secs. 2078, 12162, R.S. 1929. (5) Evidence of the preliminary arrangements between the county court and the sheriff, and his deputies, was properly admitted in evidence. Even if it was improper to admit the evidence, the error, if any, was harmless. 22 C.J., sec. 1622, pp. 1245, 1248, 1253.

HAYS, J.

Plaintiffs, a former sheriff of Andrew County and the surety on his official bond, sued defendant Andrew County seeking a declaratory...