McCue v. Wapello County

• Decision Date: 21 October 1881
• Citation: 10 N.W. 248,56 Iowa 698
• Parties: MCCUE v. THE COUNTY OF WAPELLO
• Court: Iowa Supreme Court

10 N.W. 248

56 Iowa 698

MCCUE v. THE COUNTY OF WAPELLO

Supreme Court of Iowa, Des Moines

October 21, 1881

Appeal from Wapello District Court.

ACTION at law to recover for services rendered by plaintiff as sheriff of the defendant county. The cause was tried to the court without a jury and judgment rendered for plaintiff. Defendant appeals. The facts of the case appear in the opinion.

REVERSED.

Moore & Hammond, for appellant.

William McNett and H. B. Hendershot, for appellee.

OPINION

BECK J.

I. The petition alleges that plaintiff between the 19th day of September, 1878, and the 7th day of April, 1879, was acting sheriff of Wapello county, and, in the discharge of his duty as such officer, he rendered certain services and expended certain sums of money, for which, together with an amount due him as salary, he seeks to recover in this action. The answer denies the allegations of the petition and avers the facts connected with plaintiff's claim to be substantially as set out in the finding of the court, which will hereafter appear. It further alleges that plaintiff performed the services and made the expenditures sued upon as deputy of the sheriff of the county, and that whatever claim he has therefor should be made against and adjusted with the sheriff for the services and outlay in question. Upon the issues thus presented the cause was tried to the court.

II. The plaintiff filed an amended abstract setting out the facts and conclusions of law found by the District Court, which defendant moved to strike for the reason that neither of the parties requested the court to make such findings. In support of this motion counsel for defendant insist that, to authorize the court to find specially the facts and conclusions of law, a request therefore must be made at least by one of the parties to the action. This position is based upon Code, section 2743. For the purposes of this case we may admit, without, however, so deciding, that this position is correct. But as the court has made the finding, in the absence of a contrary showing in the record, we will presume it was done in pursuance of the request of one of the parties. Acts of the court of this kind done in the progress of a case are presumed to be in accord with the law. Presumption as to the regularity of the proceedings of courts will always be exercised; errors in such proceedings must always be affirmatively shown. Under these familiar rules we must regard the findings of the court as authorized by the statute, even if it bear the construction insisted upon by defendant's counsel. The motion must be overruled.

III. The findings of the court are as follows:

"1st I find that at the general election, held in 1877, D. W. Stewart was elected to the office of sheriff of Wapello county, Iowa; that at the proper time he qualified as such officer and entered upon the duties of said office; that he appointed as his deputies the plaintiff, W. D. McCue, and Q. A. Wood, who each qualified as such deputies and each entered upon the discharge of the duties of deputy sheriff. The duties of said Wood were confined mostly to the care of the jail, and the prisoners confined therein; and the duties of the plaintiff were confined mostly to the service of processes, etc.

"2d. That at the August term, in 1878, of the District Court of said county, the grand jury presented an indictment against the sheriff, D. W. Stewart, charging him with the crime of extortion, and the court, on the 19th day of September, 1878, suspended him from office under section 756 of the Code.

"3rd. That at the time the court suspended Stewart from office it appointed the plaintiff to the same office, for the balance of the term, under section 753 of the Code.

"4th. That said plaintiff at once entered upon the duties of the office, took possession of the books and papers pertaining to the same; took control of the jail and prisoners therein, the said Wood continuing to act as jailor, but under the direction of the plaintiff.

"5th. That D. W. Stewart, after his suspension from office by the court, did not perform or attempt to perform any of the duties pertaining to said office from the 19th day of September, 1878, to the 1st day of March, 1879.

"6th. That on the 11th day of October, 1878, the board of supervisors of Wapello county appointed Thomas Bedwell sheriff, in the place of Stewart, suspended. Said Bedwell qualified and performed some of the duties of the office.

"7th. That the plaintiff, after his appointment by the court, to the time of the appointment of Bedwell, performed, either by himself, or others acting under him, including Wood, the jailer, all of the duties of the office; that said Wood recognized the plaintiff as sheriff and took his instructions from him.

"8th. That after Bedwell was appointed by the board the plaintiff denied his authority to act as sheriff, and retained possession of the books and papers of the office and the control of the jail, and continued to perform the duties of sheriff, under a claim of right; that Bedwell had at no time, charge of or control over the said books and papers, or the jail, or the prisoners confined therein.

"9th. That said Bedwell or no other person commenced any action against plaintiff, to determine his right to the office. But said Bedwell did petition the Circuit and District Courts when in session, to recognize him as the sheriff instead of McCue; that the Circuit Court did so recognize him as sheriff during most of the October term, 1878, of said court. But the District Court at the January term, 1879, refused to recognize Bedwell as sheriff, but recognized the plaintiff, who seemed to be in the possession of the office under a claim of right, and had the custody of the books and papers belonging to the office, and the control of the jail, and the prisoners confined therein.

"10th. That the plaintiff performed most of the duties of the office during the time aforesaid, from the 19th day of September, 1878, to the 1st day of March, 1879, publicly, openly, and under a claim of right to the office; that he performed many of said duties at the request of public officers and the court; that in whatever he did he acted in good faith, and claimed the right to the office, and to perform its duties, under the advice of able attorneys.

"11th. That the defendant had knowledge of his claim, and the board of supervisors audited and allowed bills presented by him for such services to the amount of $ 1,000 or more, about $ 400 of which was for dieting prisoners, sent to prison by the city authorities.

"12th. That on the 1st day of March, 1879, the said District Court vacated the order of suspension, holding that the record did not show authority to make it, and restored Stewart to the office of sheriff.

"13th. That during the time the order of suspension was in force Stewart took no appeal from it, and that he performed none of the services, directly or indirectly, for which the plaintiff claims compensation.

"14th. That Stewart, after the order of suspension was revoked, presented a claim to the board of supervisors for dieting prisoners, which embraced the same charges presented by plaintiff for such services; that the board allowed Stewart's claim, but at the same time had knowledge that plaintiff claimed pay for such services.

"15th. That Stewart had no legal claim against the county for said services, and the payment by the board to him is no bar to plaintiff's claim.

"16th. That the plaintiff expended in dieting prisoners, and expenses connected with the jail, and incurred in the discharge of the duties of sheriff, from $ 1,000 to $ 1,200.

"17th. That the plaintiff, during the time aforesaid, was sheriff de facto; that he performed said services under a claim of right, in good faith, and was not a mere intruder in said office.

"18th. That the claims sued upon were duly presented to the board of supervisors for allowance, and the board refused to allow them, before this suit was brought."

It will be observed that the fifteenth, sixteenth, and seventeenth findings presents conclusions of law. The court also found as a conclusion of law "that the plaintiff is entitled to compensation for all services actually rendered to the public, and for such services he should receive the fees provided by law and paid to the sheriff for like services." Other conclusions of law found by the court relate to the amounts found due the plaintiff upon the several items of his account; they need not be presented here.

The evidence shows without conflict that after the order for the removal of Stewart, no change was made in the business of the...