Peltzer v. Gilbert

• Decision Date: 02 July 1914
• Docket Number: No. 18318.,18318.
• Citation: 260 Mo. 500,169 S.W. 257
• Parties: PELTZER et al. v. GILBERT et al., County Judges.
• Court: Missouri Supreme Court

169 S.W. 257

260 Mo. 500

PELTZER et al. v. GILBERT et al., County Judges.

No. 18318.

Supreme Court of Missouri.

July 2, 1914.

Rehearing Denied July 14, 1914.

1. PLEADING (§ 381)—SUFFICIENCY—ISSUES AND PROOF.

Improper motives or misconduct of complainants which would prevent them from securing equitable relief on the ground that they did not come into equity with clean hands could be shown during the trial of the cause without being pleaded.

2. INJUNCTION (§ 1)—NATURE OF REMEDY— RIGHT TO WRIT.

An injunction is not a writ of right, but a writ of grace and discretion, and will only be issued when the court's own conscience is moved and the chancellor is convinced that complainants have come into equity with clean hands, and that a proper case has been made.

3. EQUITY (§ 65)—MAXIMS—CLEAN HANDS.

Where, pending the trial of a physician for murder, the county attorney applied to the county court for an order making an appropriation of $15,000 for the payment of expenses, including the cost of bringing nonresident experts into the state to testify, whereupon two taxpayers, one paying $16.25 and the other 61 cents taxes for the current year, employed an attorney to enjoin the county from paying such expenses, and the taxpayers were not actuated by a desire to protect the county treasury, but were prosecuting the suit to hamper the prosecution of the criminal case, they were not entitled to equitable relief, since they did not come into equity with clean hands.

4. COUNTIES (§ 139)—LIABILITIES—EXPENSES OF NONRESIDENT EXPERT WITNESSES—CRIMINAL PROSECUTION.

There is no warrant in law for payment by the county of the fees and expenses of nonresident expert witnesses in a criminal prosecution.

In Banc. Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Suit by Theodore C. Peltzer and another against Hugh C. Gilbert and others, Judges of the County Court of Jackson County, to restrain defendants from auditing and paying out of the county treasury certain expenses of the county attorney for the trial of one B. Clark Hyde for the murder of one Swope. From a decree dismissing the bill, complainants appeal. Reversed and remanded.

Action to restrain defendants from auditing and causing to be paid out of the county treasury certain expenses in a criminal case. The plaintiffs bring this action in equity as taxpayers of Jackson county, to enjoin the defendants as judges of the county court of that county from auditing, allowing, and causing to be paid out of the public funds of said county the sum of $15,000, which defendants are threatening to expend in defraying the cost of bringing into this state numerous physicians and other persons to be used as witnesses on behalf of the prosecution in the case of State v. B. Clark Hyde, charged with the crime of murder in the first degree. Plaintiffs also ask that defendants by mandatory injunction be compelled to restore to the treasury of Jackson county the sum of $8,974.04, which it is charged they have heretofore audited and caused to be expended from the public funds of said county in securing expert witnesses, and for other services, in a former trial of said B. Clark Hyde upon the same charge which is now pending against him. Plaintiffs do not charge that defendants have acted fraudulently or corruptly in causing the public funds of said county to be paid out in defraying the expenses of the trial of said case of State v. Hyde, nor in the threatened expenditure of other moneys in that behalf, but the gist of their complaint is that there is no law empowering defendants as such judges to audit and cause such expenses to be paid, and that, while defendants would be personally liable for causing such an unlawful disbursement of public funds, the right to sue for such misappropriated funds "resides with the county," and plaintiffs will possess no individual right to maintain an action or actions at law to recover such funds for the county after they have been unlawfully audited and disbursed.

The particular order entered by defendants regarding future disbursements of which petitioners complain is predicated upon a letter written by the prosecuting attorney of Jackson county, which letter and the order made pursuant thereto are as follows:

                                   "December 18, 1913
                

"To the Honorable County Court of Jackson County, Mo. Kansas City, Missouri—Gentlemen: I am submitting this letter to you in pursuance to our conversation of yesterday relative to the financing of the coming trial of the State of Missouri versus Hyde. Of course it is impossible for me to definitely state how much money will be required to try this case since that is altogether regulated by the length of time which the nurses and experts and other witnesses from outside the State remain in Kansas City. During the last trial one expert in particular, Dr. Wesner, was in Kansas City for several weeks, and I am hoping that no such condition will arise this time. This would materially cut the expenses in this case. However, for expert testimony and the bringing of a large number of witnesses from all parts of the United States I estimate that $15,000 will cover the expenses of this trial. Of course I am not asking for any money to be placed in my hands— only the right to get these people to come here and to have them paid by the court. I want no funds of any character or description to be placed in my hands. I will say this to the court—that I shall be as economical as possible in the trial of this case, and it will please me probably more than any one else if the expenses of this trial can be greatly reduced.

"Trusting this letter meets your requirements and you can each of you vote to allow the funds to try this very important murder case, I beg to remain,

                    "Respectfully yours
                                  "[Signed] Floyd E. Jacobs."
                

"Order.

"This cause now coming on for hearing, the court orders, by unanimous vote, that in compliance with the above communication from the county prosecuting attorney dated December 18, 1913, requesting this court to pay out of the general funds of Jackson county, Mo., the expenses (estimated by said prosecuting attorney at not to exceed $15,000) for the payment of expert witnesses and the expenses of bringing a large number of witnesses to Kansas City, Mo., from different locations in the United States for the trial of the case of State of Missouri v. B. Clark Hyde, said expenses be paid out of the general funds of the said county upon the presentation to the court of said bills approved by the prosecuting attorney."

The defendants by answer assert that the money which they intend to disburse out of the public funds of Jackson county is a necessary expenditure to procure the attendance of witnesses residing outside the state of Missouri; that said witnesses have made a chemical analysis of the stomach and other vital organs of one Thomas H. Swope, the person who it is charged was murdered by B. Clark Hyde; that the presence of such physicians and other nonresident witnesses is necessary to prove the charge which the public prosecutor has preferred against said Hyde; that the public prosecutor has no authority to compel the aforesaid nonresident witnesses to attend the trial of said B. Clark Hyde, and cannot procure their attendance in any way except by paying them a reasonable sum for their time to be consumed and expenses to be incurred in attending said trial. For further answer defendants admit that plaintiffs are taxpayers of Jackson county, but assert that the amount of taxes which plaintiffs have paid and the amount which they might have to pay towards defraying the expenses complained of would not amount to more than three cents each, and that such amount is so trivial that the court ought not to take jurisdiction of the cause and grant the relief prayed for.

All the evidence introduced by defendants quite clearly demonstrates that they are seeking to defeat this case by showing that plaintiffs are not prosecuting the action in good faith to prevent the unlawful disbursement of public funds, and that the chief purpose of the action is to impede or render impossible the successful prosecution of B. Clark Hyde. It is true that the asserted improper motives of plaintiffs, and the alleged fact that they did not come into court with clean hands, are not pleaded by defendants. It would have been more in harmony with the rules of good pleading for defendants to have specifically challenged the motives of plaintiffs in their answer filed herein, but the general rule seems to be that the improper motives or misconduct of a plaintiff which would prevent him from securing relief from a court of chancery may be shown during the trial of the cause without being pleaded at all. 16 Cyc. p. 148; Creamer v. Bivert, 214 Mo. 473, loc. cit. 485, 113 S. W. 1118; and Houtz v. Hellman, 228 Mo. 655, loc. cit. 671, 128 S. W. 1001.

We will now review the evidence which tends to prove the motives of the plaintiffs and their attorneys in prosecuting this suit:

In the trial of this cause it was shown that plaintiff Peltzer paid to Jackson county, through its collector, taxes aggregating $16.25 for and during the year 1912, and that plaintiff Bowling paid to said county 61 cents for the same year. Roland Hughes is the principal attorney for plaintiffs in the prosecution of this action. The firm of Johnson & Lucas and one Cleary were part of the attorneys employed by B. Clark Hyde to defend him against the beforementioned charge of murder.

To prove that this suit was brought and maintained at the suggestion and expense of the attorneys of B. Clark Hyde, or for the benefit of said Hyde, the defendant introduced one James W. Broaddus, who testified as follows:

"My name is James W. Broaddus. I am an attorney; have been since last June. My office is with my grandfather, E. J. Broaddus, formerly judge of the Court of Appeals in this district, at 1305 Commerce building. I...