Mullery v. McCann

• Decision Date: 18 June 1888
• Citation: 8 S.W. 774,95 Mo. 579
• Parties: Mullery, Appellant, v. McCann
• Court: Missouri Supreme Court

8 S.W. 774

95 Mo. 579

Mullery, Appellant, v. McCann

Supreme Court of Missouri

June 18, 1888

Appeal from St. Louis City Circuit Court. -- Hon. E. B. Adams Judge.

Affirmed.

E. A B. Garesche and John M. Holmes for appellant.

(1) Appellant was qualified to fill the position of justice of the peace for the fifth district of the city of St. Louis at the date of his appointment; and in any event the trial court erred in attempting to pass upon the question of his title in this proceeding. R. S., 1879, secs. 2806, 2810, 3098; Hunter v. Chandler, 45 Mo. 452; State ex rel. v John, 81 Mo. 13. (2) Appellant was the de-jure officer, and as such was entitled to recover from respondent the known and usual fees of the office received by respondent, and for this reason the trial court erred in rendering a judgment for respondent under the pleadings and evidence in this case. Hunter v. Chandler, 45 Mo. 452; United States v. Addison, 6 Wall. 29; Glasscock v. Lyons, 20 Ind. 1; Douglas v. State, 31 Ind. 429; People v. Miller, 24 Mich. 458; Dorsey v. Smith, 28 Cal. 21; Petittet v. Rousseau, 15 La. Ann. 239; Sigur v. Crenshaw, 10 La. Ann. 297.

John J. McCann for respondent.

(1) Mullery was ineligible to the office in question at the time of his appointment; his appointment was, therefore, void and his qualification a nullity. State ex rel. v. Boal, 46 Mo. 528; Searcy v. Grow, 15 Cal. 117; Shear v. Robinson, 29 Me. 531; State ex rel. v. Valle, 41 Mo. 29; Carson v. McPhetridge, 15 Ind. 327; McCrary on Elections, secs. 256-31-38. (2) Mullery vacated said office twice; first in November, 1880, against his own intention in ignorance of law; and second in June, 1881, and continuously thereafter intentionally, after his knowledge of the Ranson case decision, because he had a situation with Justice Monahan on a certain monthly salary, which he preferred to and did hold until at least November, 1882, in a foreign district from that to which he had been assigned. R. S., sec. 2806; McCrary on Elections, sec, 263, subdiv. 2. (3) Mullery voluntarily yielded possession of said office to McCann in November, 1880. McCann then had a color of title thereto; Mullery could have no action for his fees until he regained such possession or procured a decree therefor. Hunter v. Chandler, 45 Mo. 452; Allen v. McKern, 1 Sumn. 317. (4) The quo-warranto cases against McCann, 81 Mo. and 88 Mo., supra, settled only the status of McCann. State ex rel. v. Draper, 48 Mo. 213; State ex rel. v. Clark, 52 Mo. 508; Bradshaw v. Sherwood, 42 Mo. 179; Winston v. Mosley, 35 Mo. 146; State ex rel. v. Auditor, 34 Mo. 375; State ex rel. v. Townley, 56 Mo. 107; State ex rel. v. Vail, 53 Mo. 97.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This suit was brought in the circuit court of the city of St. Louis to recover the fees received by defendant while acting as a justice of the peace in the fifth district in said city from November, 1880, till November, 1882. Defendant obtained judgment on the trial, from which the plaintiff has appealed.

The record discloses the following state of facts: That a vacancy having occurred in the office of justice of the peace for the fifth district in the city of St. Louis, plaintiff Mullery was appointed to fill it, by the mayor of said city, in October, 1879; that said Mullery, at the time of said appointment, and for two or three years previous thereto, lived with his family in the seventh district in said city; that, after his said appointment, he opened and kept an office at No. 623, Chestnut street, in said fifth district; that, in November, 1880, defendant was elected a justice of the peace in and for said district, and thereafter plaintiff delivered to defendant such records as he had pertaining to said office, and sold out his office effects, furniture, sign, etc., a part of them being sold to defendant; that plaintiff thereafter, in December, 1880, went to work for Justice Monahan in the sixth district, and in the month of January, 1881, contracted to work for said Monahan in said district at a monthly salary, and continued to work under said contract till November, 1882; that defendant opened an office as justice of the peace in said fifth district in November, 1880, and acted as such justice till November, 1882, receiving the fees incident to the office during that time; that in June, 1881, quo-warranto proceedings were instituted by the state to oust defendant from said office of justice of the peace as an intruder, which resulted in a judgment of ouster (State ex rel. v. McCann, 81 Mo. 479), where it is held that defendant acquired no title to said office under the election held in 1880. After the rendition of this opinion the mayor, acting upon the belief that there was a vacancy in the said office, appointed defendant to fill it, and thereupon another proceeding by quo warranto was instituted by the state at the relation of the prosecuting attorney to oust defendant which culminated in a judgment of ouster. State ex rel. v. McCann, 88 Mo. 386. While in these cases it is held that defendant had no title to said office they do not establish plaintiff's title.

During the pendency of this proceeding, plaintiff remained in the employment of said Monahan under his contract, and brings this suit to recover the fees collected by defendant as said justice from November, 1880, to November, 1882. The right of a de-jure officer who is ousted from his office by an intruder to recover from such intruder the fees received by him during his occupancy of the office cannot be seriously questioned. But before such recovery can be had the plaintiff must show a valid title to the office, for it is only on the theory that he is de jure an officer that he can recover. The plaintiff in this case, as the basis of his title, alleges that, on the twenty-ninth of October, 1879, he was appointed by the mayor of the city to fill a vacancy in the said office of justice of the peace in the fifth district, and that he was competent and qualified to fill said office. Defendant in his answer avers that the said appointment of plaintiff was null and void for the reason that plaintiff was not competent or qualified to fill the office in question at the time of his appointment. In the replication to this answer plaintiff denies that his appointment was void...