Mills v. Berry
| Decision Date | 21 September 1965 |
| Docket Number | No. 31967,31967 |
| Citation | 395 S.W.2d 228 |
| Parties | John E. MILLS, Plaintiff-Appellant, v. F. E. BERRY, Merritt Nichols and George Lane, Judges of County Court of Ralls County, Missouri, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
John E. Mills, New London, for plaintiff-appellant.
Ely & Hibbard, Hannibal, for defendants-respondents.
For the purposes of this opinion we treat this action as one brought by plaintiff-appellant as the duly elected and acting prosecuting attorney of Ralls County, Missouri against defendant-respondent, Ralls County, Missouri, for re-imbursement for certain expenses of the office of prosecuting attorney which plaintiff claimed to have paid for out of his own funds. The suit resulted when the County Court of Ralls County refused to re-imburse plaintiff.
We shall refer to the parties as plaintiff and defendant.
Plaintiff claims in his petition that he expended for telephone, telegraph, mileage secretarial hire and F.I.C.A. taxes for the years 1960 through 1963, a total of $2,244.41 which amounts were properly chargeable against Ralls County and demanded payment from the County for re-imbursement in the amount budgeted for the period in question, amounting to $1,980.41, which defendant county refused to pay.
Defendant's first amended answer admitted that there was due and owing to plaintiff by way of re-imbursement for expenses incurred by plaintiff in his official capacity as prosecuting attorney, a total of $1,307.28, which amount, together with $10.00 court cost deposit made by plaintiff, was tendered into court.
Plaintiff thereafter notified the circuit judge and the circuit clerk, in writing, that a jury would not be required in the trial of the case. The circuit judge disqualified himself and subsequently, Hon. James D. Clemens, Special Judge, assumed jurisdiction of the case. On the day the case was set for trial, plaintiff appeared in person and as counsel for himself. Defendant appeared by counsel. After considerable discussion, the Court pointed out to plaintiff that no jury had been called in response to the written statement of plaintiff that he did not desire to submit the matter to a jury and further, '* * * the purpose of the trial today is to give you an opportunty to prosecute your action if you care to do so.' To which plaintiff replied: 'So far as I am concerned, I will dismiss the action.' The Court answered: 'All right.'
After still more discussion between the Court and plaintiff in which plaintiff seemed to want to discuss generally his difficulties with the County Court of Ralls County, the trial judge stated to plaintiff: The plaintiff replied: 'Yes, sir.' After still further discussion, the Court stated: Plaintiff replied:
Plaintiff had not been sworn as a witness and no other witnesses were ever sworn and no evidence of any kind was offered by plaintiff. The trial judge stated: 'Well, it is the decision of the Court that inasmuch as the plaintiff has no evidence to present in support of his petition, and has stated that he desires to dismiss the action, it will be the Court's order that the petition be dismissed for want of prosecution, and that the funds heretofore tendered by the defendants be, by the Clerk, returned to the defendants in the case.' Judgment was entered on April 29, 1964, dismissing plaintiff's cause of action for want of prosecution and taxing the costs against the plaintiff.
On May 7, 1964, plaintiff filed a motion entitled 'Motion for New Trial,' as follows: Plaintiff, John E. Mills, moves this court make and enter its order setting aside the judgment heretofore entered in this cause upon the 29th day of April, 1964, and granting to Plaintiff a new trial upon the grounds that: (1) the trial judge entered no findings of facts in said matter upon which he based his judgment. (2) Defendant, in his pleadings, admitted liability for accounts claimed to be due by plaintiff but the trial judge ruled these accounts should not be paid even though admitted to be due by the defendants. (3) The trial judge erred in refusing to permit public funds budgeted and allotted for said purposes to be used in the necessary operation of the office of Prosecuting Attorney.
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...the basis of...." The order overruling the motion for a new trial is not appealable. § 512.020 [RSMo 1969, V.A.M.S.]; Mills v. Berry, 395 S.W.2d 228, 231 (Mo.App.1965). The appeal should have been taken from the Matter of Estate of Langford, 529 S.W.2d 31, 32 (Mo.App.1975). See also Nickers......
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