Price v. Johnson Cnty.

• Decision Date: 31 January 1852
• Citation: 15 Mo. 433
• Parties: PRICE v. JOHNSON COUNTY.
• Court: Missouri Supreme Court

15 Mo. 433

PRICE

v.JOHNSON COUNTY.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM HENRY CIRCUIT COURT.

ADAMS & HICKS, for Appellant.

I. All the proceedings had in the County Court after the settlement by complainant on the 17th day of August, 1848, commencing with the revocation of said settlement and ending with the judgment and execution, were void. 1st. Because there was no legal notice served upon the complainant. Caldwell v. Lockridge, 9 Mo. R 362; Smith v. Rice, 11 Mass. R. 507; Medlin v. Platte County, 8 Mo. R. 238; Milan v. Pemberton, 12 Mo. R. 598; 3 Sumner's R. 341.2nd. Because the County Court derive their whole jurisdiction in the premises from the statute, and cannot and do not proceed according to the course of common law, but must pursue the requisition of the statute, and a departure therefrom will render the proceedings void. The statute did not authorize the court to make an adjustment of complainant's accounts for revenues arising from taxes, as in the present case, in his absence-- notwithstanding they may have cited him to appear. If he failed to appear they might have compelled him by attachment which was the only remedy. The statute entitled “An act to establish and regulate County Treasuries,” under which the County Court seems to have acted, has no reference to a case of this kind; but it is governed by the provisions of the act entitled “Act to provide for the levying, assessing and collecting the Revenue,” approved March 27th, 1845, see §§ 34, 35, 40, art. 2, and §§ 20, 23, 39, 40, 41, 42, 43, 44, 45, 46, art. 3, § 4, art. 4, of the latter act, in connection with art. 2 of the former act. 3rd. Because complainant's settlement of the 17th August, 1848, is final and conclusive. Downing's Est. 5 Watts, 90.

II. The law does not authorize the County Court under any circumstances to render judgment against a collector for revenue arising from taxes and license, as in this case. But even if it did, there could be no judgment given without first notifying the defendant. A proceeding is void for want of notice even where none is directed by the statute, and consequently the judgment rendered against complainant, at the November term, 1848, of the Johnson County Court was void, not only because there was no authority in the statute for rendering such a judgment, but because it was rendered without any summons or notice to the complainant. 3 Sumner, 341; 14 Mass. R. 223.

III. The decree is erroneous upon its face. 1st. Because it dissolves the injunction and leaves the judgment of the County Court in full force, and at the same time decrees against the complainant the sum of $1,393 94 with 30 per centum per annum from the 28th day of August, 1848. Powers & Ashley v. Watts, 8 Mo. R. 299. 2nd. Because there was no cross-bill to support any decree for relief in favor of defendant. 3rd. Because even if there had been a cross-bill, the decree orders the payment of a penalty of 30 per centum per annum from the 28th day of August, 1848, and courts of equity will not aid in the enforcement of penalties or forfeitures. Story's Eq. Pl. §§ 390, 391, 392; Cooper's Pl. 85, 86; Germain v. Mackie, 6 Paige, 288; 2 Story's Eq. §§ 1319, 1494; Mitford's Eq. Pl. by Jeremy, 186, 193, 194, 198; 1 Madd. Ch. R. 173-4; Cooper's Eq. Pl. ch. 3, § 3, pp. 191, 206; Montague v. Dudman, 2 Vesey, 398; 14 Vesey, 64; 3 Metc. 693; Watts v. Watts, 11 Mo. R. 547.

IV. The decree is not supported by the evidence, and ought to have been given for the complainant; there was no testimony to support the decree, except the testimony of the witness, Reynols, and he was clearly interested, and incompetent: see Horine v. Horine & Funk, 11 Mo. R. 649; Collins v. Ellis, 21 Wend. 397; 8 Mo. R. 846; 1 Starkie's Ev. 90, 91, 92; see the distinction between an interest in the result and in the record as an instrument of evidence, 1 Starkie's Ev. 83. The witness, Reynols, was not an agent of the county of Johnson, acting in the name of the county, but was a public officer, acting in his own name as such, and subject to the provisions of the statute creatiag the office and prescribing its duties. But even if the hypothesis were true that he was an agent in the strict sense of that term he was still an incompetent witness. The principle is well established that an agent cannot be called to deny the effect of his own act. Greenl. Ev. § 417; Fuller v. Wheelock, 1 Pick. 135 in point.

V. After answer it is too late to object to the jurisdiction of the court, on the ground that the party's remedy was at law. 10 Mo. R. 656; 4 Johns. Ch. R. 290.LEONARD & HAYDEN, for Respondent. There are only two questions in the record. First. Is the judgment of the Johnson County Court void? Second. If it be so, can a court of equity interfere by injunction to prevent it from being carried into effect, or is the party left to his legal remedies against whoever attempts to enforce it?

I. If the County Court judgment be not void, then the allegations in the bill that the collector paid into the treasury the whole sum due from him, and that the ex-parte settlement of the 27th August, upon which the judgment was given is erroneous in fact, furnishes no ground of equity. It is not competent for the Circuit Court to re-try in this manner a matter submitted by law to another tribunal. No such jurisdiction has been conferred upon the Circuit Court. Of course under this view of the case, this court is relieved from the necessity of investigating the facts in reference to the correctness of the balance struck against the collector in the ex-parte settlement, and from deciding the question of the competency of the treasurer as a witness for the county--First. The Johnson County Court judgment is not a nullity. The alleged grounds of nullity are, that the act concerning County Treasuries, Rev. Stat. p. 308, § § 2, 3, 4, 5, does not authorize this proceeding against a collector for his failure to settle and pay over money collected on account of general taxes; the want of notice to the collector that this judgment would be entered against him if he failed to appear and show cause against it, and that previously, at the same term of the court, upon a settlement with the collector of the same account, a smaller balance was struck against him and paid accordingly, and that this was a subsisting settlement of the same account at the time of the settlement of the 28th of August, and had the effect of rendering that settlement void. Of these objections in their order. 1st. The case is regulated by the act concerning County Treasuries; both the person and subject matter of the settlement fall within the words and policy of that, and there is nothing in the general Revenue act to exempt either the collector or the fund here settled from its provisions, both acts stand together and there is nothing in the one to limit the general words of the other. 2nd. The balance struck against the collector upon the settlement of the 27th August, and the penalty of thirty per cent. per annum became, by lapse of time and the omission of the party to appear in court and show cause against it, a judgment against him. The court had no discretion over the matter, its only duty was the mere ministerial one of entering up a formal judgment. Neither the act itself nor natural justice required any notice to be served on the defendant to show cause why judgment should not be entered up against him for the balance struck and penalty. He had legal notice of the settlement of the 27th of August, and knew that unless he appeared and showed cause against the balance that should be then struck, a judgment therefor would be entered up against him at the succeeding term. No one supposes that where there is a default against a party he is entitled to a fresh notice before there can be a final judgment. 3rd. The settlement of the 17th of August was annulled by the very act of re-setting the account of the 27th of August, which was on due notice; the last act per se annulled the preceding act, it was a re-settlement of a previously settled account and by striking a new, annulled the old balance. The court had power during the term to vacate this settlement--it could set aside any determination of law or fact to which it had come, and direct a re-trial. This power to correct its own errors during the term is a necessary power in every court, and daily exercised by all. Caldwell v. Lockridge, 9 Mo. R. 362. But the objection here insisted upon is, that if the settlement of the 27th of August is to have the effect of annulling the previous settlement of 17th of that month, that is an effect outside of the notice served upon him, and therefore to that extent the latter settlement is without notice and so void. It is obvious that this objection is merely formal. The plaintiff had made a settlement of his accounts as a collecting officer, and the summons could be construed in no other manner than as a summons to re-settle, as a notice the former settlement was to be reviewed. A different construction for the purpose of annulling the settlement of the 27th of August, it is respectfully submitted, trifling with the merits of the matter. Again, admitting that the first settlement must have been vacated before the court would proceed to a re-settlement, and that the re-settlement of the 27th of August cannot on account of the insufficiency of the notice be construed as vacating the settlement of the 17th of August, yet, here there was an express annulling of the settlement by the order of the 23rd of August. This order, however, is said to be void upon the ground that the principles of natural justice forbid that a judicial sentence should affect one without notice, and this principle in natural--not positive, law--is invoked for the protection of a party who admits he had information--notice in fact, but contests its legality; that he knew of the intention to re-settle his account, but purposely kept away that he might set...