Perkins v. Burks

• Decision Date: 12 June 1933
• Docket Number: 32639
• Citation: 61 S.W.2d 756
• Parties: PERKINS v. BURKS et al
• Court: Missouri Supreme Court

61 S.W.2d 756

PERKINS v. BURKS et al

No. 32639

Supreme Court of Missouri, First Division

June 12, 1933

J. M Tatum and J. T. Pinnell, both of Pineville, for appellants.

Lon Kelley, of Pineville, for respondent.

OPINION

HYDE Commissioner.

This is a proceeding in mandamus against the judges of the county court of McDonald county. Perkins filed a petition in the circuit court of that county praying the issuance of a writ against the county judges named, commanding them to issue warrants for $ 437.43, claimed to be due him for his services as circuit clerk from June to December, 1931, inclusive. His petition stated that he was entitled, under section 11786, R S. Mo. 1929 (Mo. St. Ann. § 11786), to $ 166.66 per month for those months and that the total amount he had been paid was $ 729.19. An alternative writ of mandamus was issued against the county judges. They filed a motion to quash the writ, because mandamus was not a proper remedy, which the court overruled. Thereafter, they filed a return to the writ to the effect that, because of the population of the county as ascertained by the United States census of 1930, Perkins had been paid all he was entitled to receive as salary as circuit clerk. No reply was filed to this return and the facts were settled by stipulation. After a trial, the alternative writ was made absolute and an appeal was granted to this court.

Although our jurisdiction is not questioned by the parties, it is nevertheless, our duty to decide whether or not we have jurisdiction. Wheat v. Platte City Benefit Assessment Special Road District (Mo. Sup.) 52 S.W.2d 856; State ex rel. Consolidated School District v. Ingram. 317 Mo. 1141, 298 S.W. 37; Bealmer v. Hartford Fire Insurance Co., 281 Mo. 495, 220 S.W. 954. The county is not a party to the record in this case. This court does not have jurisdiction of a mandamus proceeding to compel the judges of the county court, who are the only parties defendant, to issue a warrant in favor of a county officer for the amount, less than our jurisdictional amount, claimed to be due him for salary. It is not enough that the county is the real party in interest. This question has been settled in State, to Use of Nee, v. Gorsuch, 303 Mo. 295, 260 S.W. 455; State ex rel. Stipp v. Cornish (Mo. Sup.) 19 S.W.2d 294; Dietrich v. Brickey, 327 Mo. 189, 37 S.W.2d 428. See, also, State ex rel. Walker v. Locust Creek Drainage District (Mo. Sup.) 58 S.W.2d 452. Petitioner may rely upon State ex rel. O'Connor v. Riedel, 329 Mo. 616, 46 S.W.2d 131, which is cited in the briefs of both parties. That case, however, was an original mandamus proceeding in this court in which the real question raised and decided was the constitutionality of a statute. That also was true of State ex rel. Summers v....