Reppy v. Jefferson Cnty.

• Decision Date: 31 October 1870
• Citation: 47 Mo. 66
• Parties: S. A. REPPY, Plaintiff in Error, v. JEFFERSON COUNTY, Defendant in Error.
• Court: Missouri Supreme Court

47 Mo. 66

S. A. REPPY, Plaintiff in Error,

v.JEFFERSON COUNTY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Second District Court.

Pipkin & Emerson, for plaintiff in error.

I. Plaintiff claims that the agreement with him can be proven by parol. (28 Mo. 586; 34 Mo. 383-8.) It was not a judicial proceeding. Directing an index to be made was no adjudication. It was a mere ministerial act, and need not be made a matter of record at all. When the agreement was made between Reppy and the judges on the bench, this was an end of the matter so far as Reppy was concerned, and he could not be affected by any act of the clerk or the court as to whether it was made rightly or wrongly, or made at all. It was not like a proceeding between two persons before a court; the court itself was a party to the contract. It is not necessary by any means that every act of the court should be entered of record to be valid. It is undoubtedly good law that “what a court of record does can only be shown by its records.” But that means simply this: whatever the court does judicially, necessary to be recorded, can only be proven by the record. But this was not a judicial act at all in any sense.

II. But even if there were error in the introduction of the parol evidence of contract, all this was waived and cured by defendant introducing a record entry of such a contract as sued upon. This is conclusive upon defendant. His attempted impeachment of the verity of his own record was incompetent. A party can not be permitted to impeach his own witness.

Abner Green and J. J. Williams, for defendant in error.

I. If the contract was reduced to writing, that was the best evidence of the contract, and plaintiff should have been required to produce it. And it was not competent for him to prove it by parol.

II. The County Court, in a case of this kind, has no powers other than such as it may exercise in its capacity as general agent of the county. The case is entirely different from contracts to build bridges, boats, public buildings, etc., in which the statute gives the court a general power to contract, and prescribes the manner of doing so. (28 Mo. 580.)

III. It was error for the court to allow parol testimony of the contract to be introduced. Whether there had or had not been a record, such contract must be of record, and can not be proven by parol. The case of Boggs v. Caldwell County, 28 Mo. 580, was a case in which it is manifest that the party who made the new index was clerk of both County and Circuit Courts, and also recorder by virtue of his office, and, as such, being the immediate officer of the County Court, he stood in a different relation to that body from that occupied by the plaintiff in this case, who was a stranger. But if it be presumed that such relation did not affect the decision of the Supreme Court in that case, then that decision, in so far as it would seem to authorize the proving of such a contract with the county by parol, is not the law, and ought to be overruled. (Dennison v. County of St. Louis, 33 Mo. 168.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff claims to have been employed by the judges of the County Court to make a full direct and inverted index to the land records of the county of Jefferson, at the price of fifteen cents for each name; that he has performed the work, but has received only $500 upon the compensation, and that the balance of his bill, amounting to some $2,100, the County Court refused to pay.

Defendant's counsel first contend that the rejection of the claim is a judgment; that the plaintiff is concluded by it, and can not prosecute in the Circuit Court. This claim is wholly untenable. The County Court, in auditing claims against the county, is but its financial agent, and not a judicial body. It represents the county, and in the numerous prosecutions against it, from the earliest times, it has never been held that a rejected claim was res adjudicata. (Phelps County v. Bishop, 46 Mo. 68.) The idea that a disallowance of a claim operated as a judgment against the claimant has arisen in part from the fact that an appeal is allowed from such action. This, however, is but a statutory mode of bringing the county into the Circuit Court without original process, and the claimant may avail himself of it or commence suit.

The petition counted upon a verbal contract with the judges not entered upon the records, and defendant denies such contract, and also...