Nodaway County v. Kidder

• Decision Date: 14 June 1939
• Docket Number: 35742
• Citation: 129 S.W.2d 857,344 Mo. 795
• Parties: County of Nodaway v. A. P. Kidder, Appellant
• Court: Missouri Supreme Court

129 S.W.2d 857

344 Mo. 795

County of Nodaway v. A. P. Kidder, Appellant

No. 35742

Supreme Court of Missouri

June 14, 1939

Appeal from Nodaway Circuit Court; Hon. Thomas A. Cummins Judge.

Affirmed.

Wright & Ford, Ellis G. Cook and Livengood & Weightman for appellant.

(1) The issues are made by the pleadings. Lumber Co. v Miller, 64 Mo.App. 620; King v. Richardson, 94 Mo.App. 670. (2) The burden is on the plaintiff to establish the cause stated in the petition. Bunker v. Hibbler, 49 Mo.App. 536; Milling Co. v. McWilliams, 121 Mo.App. 319. (3) The petition alleged that the money paid to Judge Kidder was paid to him and received by him "As judge of the county court." The burden was on the county to establish that allegation by affirmative proof. Putnam County v. Johnson, 259 Mo. 73. (4) The same person may serve a public corporation in two different capacities, may even hold two different offices. The compensation received in one capacity will not be treated as compensation received in the other. State ex rel. v. Lusk, 48 Mo. 242; State ex rel. Langford v. Kansas City, 261 S.W. 115. (5) The action for money had and received, while an action at law, is equitable in its nature and governed by equitable principles. Henderson v. Koening, 192 Mo. 690; Bank v. Bank, 244 Mo. 554; Schaper v Smith, 56 S.W.2d 820. (6) When money is paid and the payee receives it with good conscience and uses no fraud or unfairness to obtain it, an action for money had and received will not lie. Bradley v. Bradley County Bank, 206 F. 41. (7) Before the plaintiff can recover, he must show that the money was received without consideration and that in equity and good conscience, the defendant ought not to be allowed to retain it. Ford-Davis Mfg. Co. v. McGee, 233 S.W. 267; Schank v. Schuchman, 212 N.Y. 352, 106 N.E. 127. (8) The question is not whether the defendant had a legal and valid demand against the county or not, but the question now is will the court compel Kidder to refund the money to the county because allowing him to retain it would be an offense against equity and good conscience? Atlantic Coast Line Railroad Co. v. Florida, 295 U.S. 301; Schank v. Schuchman, 212 N.Y. 352, 106 N.E. 127. (9) The above principles apply to counties as well as individuals, and this would be so even if there was a wide departure from the statute in the making of the contract under which the money was paid to the claimant. If the county received full value for its money no recovery can be had. Sacre County v. So. Pac. Ry. Co., 127 Cal. 217, 59 P. 568.

C. G. Vogt, Prosecuting Attorney, for respondent.

(1) A judge of the county court receives his authority from the law, discharges some of the functions of government and is a public officer, and one employed by the court is a public officer. State ex rel. v. Valle, 41 Mo. 30; People ex rel. v. Langdon, 40 Mich. 630; Rolland v. Mayor, 83 N.Y. 376; State ex rel. v. May, 106 Mo. 488. (2) An officer can only recover such compensation as is specifically authorized by statute. William v. Chariton County, 85 Mo. 645; Linn County v. Adams, 172 Mo. 1; Hill v. Butler County, 195 Mo. 511. Furthermore, an officer in Missouri does services gratuitously, unless some statutory authorization is found for the payment of same. King v. Riverland Levee Dist., 279 S.W. 196. (3) An officer can not employ himself, or a county court employ one of its own members to do services and pay for same. State ex rel. v. Draper, 45 Mo. 355; Meglemeyer v. Weissinger, 131 S.W. 40; State ex rel. v. Bowman, 184 Mo.App. 549. (4) No judge of the county court has any authority except at a court in session. And proof of action by the court if legal and valid could only be shown by the record of such court. Carter v. Reynolds County, 315 Mo. 1233; Bayless v. Gibbs, 251 Mo. 492. "A county court can speak only through its records and this is true as to all of its acts, whether judicial or ministerial. . . . The county court can act for and obligate the county only when sitting as a court." 315 Mo. 1233. (5) County court judges receive as salary and compensation $ 5 per day for holding court in counties the size of Nodaway, less than 75,000, Laws 1931, p. 190, Laws 1933, p. 204, also $ 5 per day as a member of tax boards and boards of equalization. Sec. 9818, R. S. 1929. Also 5 cents per mile each way, as mileage in attending court. Laws 1931, p. 190, Laws 1933, p. 204, provided, that such mileage shall be charged once for each of the four regular terms of court provided by law for each year. (6) Since the defendant received money, over and above his salary, compensation and mileage sitting with the county court, which he could not legally receive by contract or employment of the court of which he was a member, said money could be recovered back. State ex rel. v. Hackman, 265 S.W. 532; State ex rel. v. Dearing, 274 S.W. 477; School v. Cooper, 28 S.W.2d 384; State ex rel. v. Diemer, 255 Mo. 351; Lamar Twp. v. Lamar, 261 Mo. 171; State ex rel. v. Scott, 270 Mo. 146; Atchison v. DeArmond, 60 Mo. 19; County v. Fayman, 329 Mo. 423, 44 S.W.2d 849.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action by Nodaway County (respondent herein) for money had and received by defendant to plaintiff's use. From a judgment for plaintiff the defendant has appealed.

The petition charged that for the years 1933 and 1934 defendant A. P. Kidder (hereinafter called appellant) was the duly elected, qualified and acting Presiding Judge of the County Court of Nodaway County; that during each month of said two year period appellant filed and presented to the county court his written claims and demands for salary and compensation as a member of said county court and as a member of the board of equalization in the sum of $ 2560, and mileage claims for $ 516.55, all of which claims were allowed and paid out of public funds of Nodaway County and, the total amount thereof, received by appellant; that appellant was legally entitled to receive as salary and compensation only $ 465 and $ 6 mileage; and that the allowance and payment of the excess amount to appellant, for which recovery was sought, was illegal, wrongful, and without authority of law. The answer was a general denial.

On application of plaintiff a referee was appointed, testimony heard, and a report filed. Exceptions by appellant to said report were overruled, and judgment entered for plaintiff.

In the hearing before the referee it was admitted that appellant was, during the entire period of 1933 and 1934, the duly elected, qualified and acting Presiding Judge of the county court of said county; that Nodaway County contained a population of less than 75,000 inhabitants; that during the said period appellant filed with the clerk of the county court some twenty-nine statements, which were duly audited and allowed by the county court in favor of appellant; that warrants were drawn in payment of said statements; that the warrants were paid, and the proceeds received by appellant. The said statements cover charges by appellant against the county for time (days per month) at the rate of $ 5 per day, together with certain mileage at the rate of five cents per mile. The said statements cover not only the time of appellant while in attendance at county court, and at meetings of the board of equalization and board of appeals but also time spent at the county farm, and on trips to inspect roads, culverts or bridges, trips to the asylum at St. Joseph, trips to various towns in the county, trips to St. Joseph with hogs, trips to St. Joseph to purchase supplies of various kinds and other charges. It was admitted that four terms of county court were held each year; and that appellant resided seven and one-half miles from the place of holding court. The proof further showed that the county court, board of equalization and board of appeals were in session a total of ninety-three days during said period.

In the hearing before the referee, appellant, in the cross-examination of one of plaintiff's witnesses, offered to show that all of the time covered by the statements, exclusive of time spent while attending county court, the board of equalization or board of appeals, was spent by appellant as an employee of Nodaway County, and not as Judge; that appellant was working as an employee of the county under an agreement with the county court that he be allowed $ 5 per day and mileage while attending to county business; that all funds paid appellant, except for attendance at county court, board of equalization and board of appeals, were paid to him merely as an employee of the county and to save the county from hiring a highway engineer. The offering was denied. Appellant demurred to plaintiff's evidence and stood on the demurrer.

The referee found that plaintiff's evidence amply supported the allegations of the petition; that the grand total paid by Nodaway County to appellant was $ 3019.90; that appellant was lawfully entitled to receive, as compensation and mileage, only $ 471; and that appellant during said two year period received "in excess of his legal compensation as County Judge" a total of $ 2548.90 which plaintiff was entitled to recover. The report was approved and judgment duly entered thereon for recovery of said excess by plaintiff.

Error is assigned on the court's sustaining referee's report. Appellant contends that the evidence fails to support (1) the allegation of the petition and (2) the findings of the referee, and that error was committed in rejecting evidence offered by appellant to show that the money was received as a county employee, and not "as Judge of the County Court."

This is an action at law and the findings of fact made by the referee, when approved and confirmed by the trial court,...