Rinehart v. Howell County

• Decision Date: 25 July 1941
• Docket Number: 37231
• Citation: 153 S.W.2d 381,348 Mo. 421
• Parties: Homer Rinehart v. Howell County, Appellant
• Court: Missouri Supreme Court

153 S.W.2d 381

348 Mo. 421

Homer Rinehart v. Howell County, Appellant

No. 37231

Supreme Court of Missouri

July 25, 1941

Appeal from Polk Circuit Court; Hon. Cornelius Skinker Judge.

Affirmed.

M K. McMurtrey and Robert L. Hyder for appellant.

(1) The judgment rendered by the court below was in excess of its jurisdiction. Beckwith v. Boyce, 12 Mo. 440; Weller v. Lbr. Co., 176 Mo. 243. (2) The evidence does not sustain the judgment of the court. County Budget Laws, Sess. Acts 1933, pp. 340-351; Missouri-Kansas Chemical Corp. v. New Madrid County, 139 S.W.2d 457. (3) The court erred in refusing declarations of law numbered 1 and 2 offered by defendant below. Secs. 11326, 11353, 11835, 11875, R. S. Mo. 1929, Laws 1939, pp. 248, 375; Ward v Christian County, 341 Mo. 1115, 111 S.W.2d 182; Smith v. Pettis County, 136 S.W.2d 282; 46 C. J., sec. 301, p. 1035; Commonwealth v. Tice, 128 A. 506; 15 C. J., pp. 562-567; State v. Wofford, 116 Mo. 223; Humiston v. Shaffer, 78 P. 651; People ex rel. v. Cook, 274 Ill. 158, 113 N.E. 58; Board of Commrs. v. Teller, 95 P. 554.

Wm. D. Roberts and H. D. Green for respondent.

(1) An order overruling a motion for a new trial is not an appealable order. Bueker v. Aufderheide, 111 S.W.2d 131; Polizos v. Furman, 116 S.W.2d 151. (2) Since the order overruling the motion for a new trial is not an appealable order, the appeal in this case must be dismissed. Bueker v. Aufderheide, 111 S.W.2d 131. (3) In the absence of exception preserved by a bill of exceptions to the denial of a new trial only errors appearing on the record proper can be reviewed. Holt v. Hanley, 149 S.W. 1. (4) The record proper must show the filing of the motion for a new trial and the ruling thereon; but an exception to the ruling must be preserved in the bill of exceptions and in the record proper and the fact that the exception has been preserved must appear in the abstract of the bill of exceptions. If it does not so appear the appeal presents nothing for review except the record proper. Hays v. Foos, 122 S.W. 1038. (5) Appellant's pretended abstract of record in this case is insufficient. Ford v. Thayer-Moore Brokerage Co., 197 S.W. 339; St. Louis v. Young, 248 Mo. 347, 154 S.W. 87. (6) Where defendant's abstract of the record failed in material respects to comply with the law, and plaintiff has duly objected to the same and files its brief, defendant cannot file an additional abstract supplying the defects in the original, and presenting a totally different state of the record, and require the court to consider the same. Harding v. Bedoll, 100 S.W. 638; Karcher v. Jackson, 217 S.W. 48. (7) Generally, appellant cannot cure defects in abstracts of record, called to his attention by respondent especially after a lapse of time for filing abstract. Bollinger v. New Era Pub. Co., 68 S.W.2d 725; State ex rel. State Highway Comm. v. Counts, 45 S.W.2d 931. (8) The trial court had authority to consolidate the respondent's two suits against the appellant herein and to try and determine both suits and claims in one trial and to render one judgment based upon both claims. Sec. 943, R. S. 1929. (9) The exercise of this authority is discretionary with the trial court. State ex rel. v. Ry. Co., 89 Mo. 571. (10) Both of the respondent's claims in this cause of action amounted to $ 120. Judgment rendered by the trial court was not in excess of its jurisdiction. Sec. 943, R. S. 1929. (11) The trial court consolidated the two cases of respondent in this case and thereafter in contemplation of law there was but one action, as much so as if there had been but one action in the first place, and the amount involved in both causes of action of respondent was $ 120. The court had jurisdiction to render judgment for that amount. State ex rel. v. Fraser, 165 Mo. 256, 65 S.W. 569; Aufderheide v. Polar Wave Ice & Fuel Co., 4 S.W. 776. (12) Where there is nothing on the face of the petition to indicate other than a valid contract, if it is to be invalidated by some extrinsic manner, such matter must be pleaded. Carter v. Met. Life Ins. Co., 204 S.W. 399. In the trial court the appellant did not plead the county budget laws statute as a defense to plaintiff's cause of action or invoke the statute by way of interposing it as a ground of objection to the introduction of evidence, nor did defendant in any way call to the attention of the trial court that plaintiff was not entitled to recover by reason of the provision of the county budget law. Under such circumstances in any event the defense was waived and cannot be put forward here for the first time. Wright v. Cobb, 229 S.W. 171. (13) It is elementary that a cause must be heard in the appellate court upon the same theory as that upon which it was tried. Snyder v. American Car & Foundry Co., 14 S.W.2d 607; Guthrie v. Gillespie, 6 S.W.2d 886; Pienieng v. Wells, 271 S.W. 62; Kane v. McMenamy, 307 Mo. 98, 270 S.W. 662; St. Louis v. Wright Contracting Co., 210 Mo. 491, 109 S.W. 6. (14) No exception shall be taken in an appeal or writ of error to any proceeding in the circuit court, except such as shall have been expressly decided by such court. Sec. 1061, R. S. 1929. (15) "But where the law requires an officer to do that which necessitates an expenditure of money for which no provision is made to supply him with cash in hand, he may make the expenditure out of his own funds and have reimbursement therefor." County of Boone v. Todd, 3 Mo. 140; Harkreader v. Vernon County, 216 Mo. 696; Buchanan v. Ralls County, 283 Mo. 10, 222 S.W. 1002; Ewing v. Vernon County, 216 Mo. 681; Saylor v. Nodaway County, 159 Mo. 520, 60 S.W. 1057.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This is an action by Homer Rinehart against Howell County, Missouri, for reimbursement of reasonable sums paid for necessary stenographic services incurred in the discharge of his official duties as prosecuting attorney of said county. Howell County appealed from an adverse judgment for $ 120.

The record does not sustain appellant's contention that the judgment for $ 120 may not stand on the theory respondent asked for only $ 30. According to appellant's abstract reimbursement for an expenditure of only $ 30, covering the month of January, 1939, was involved. However, respondent's additional abstract discloses that another action involving $ 90, covering reimbursements for like expenditures in the months of February, March and April, 1939, also was pending and that the circuit court, by order, consolidated the causes for the purposes of trial and judgment.

Appellant says respondent may not prevail because he failed to allege or prove that the items had been provided for in the county's budget under the County Budget Law (Laws 1933, p. 340, Secs. 1-8, as amended, Mo. Stat. Ann., p. 6434, Secs. 12126a-h; Secs. 10910-10917, R. S. 1939). Howell County has less than 50,000 inhabitants. Upon appeal from the county to the circuit court, the action was triable de novo. [Sec. 2490, R. S. 1939, Mo. Stat. Ann., p. 2661, Sec. 2088.] Upon trial in the circuit court the only evidence offered was by respondent; the County Budget Law was not interposed in defense, and there was no showing with respect to the budgeting or nonbudgeting of said item. Appellant points to no provision of the County Budget Law making allowance for the payment of a probable item of expense in a county's budget a condition precedent to the institution of suit on the item. Missouri-Kansas Chemical Corp. v. New Madrid County, 345 Mo. 1167, 1169, 139 S.W.2d 457, 458[1, 2], the only case cited by appellant, does not so hold. In Traub v. Buchanan County, 341 Mo. 727, 730, 108 S.W.2d 340, 341[1], the county pleaded the applicable provisions of said law in defense. [Consult also Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 665.] Appellant has not discharged its burden of establishing reversible error upon appeal in this respect.

So far as presented for review, the record, viewed in the light of the judgment for respondent, is to be considered as establishing that the expenditures for which respondent asked reimbursement were for indispensable outlays for stenographic services incurred in the discharge of his official duties. Appellant offered no evidence and its brief does not question the probative value of respondent's testimony tending to establish said fact. The case is to be distinguished from cases announcing the rule that officials may not receive compensation in addition to that authorized by law. [Maxwell v. Andrew County, 347 Mo. 156, 146 S.W.2d 621 [11-14]; Smith v. Pettis County, 345 Mo. 839, 844[2], 136 S.W.2d 282, 285[4], and cases cited; Humiston v Shaffer, 145 Cal. 195, 78 P. 651; People v. Cook County, 274 Ill. 158, 113 N.E. 58; Board of Commissioners v. Trowbridge, 42 Colo. 449, 95 P. 554.] Maxwell v. Andrew County, supra, involved, sufficient for the purposes here, charges asserted against the county by Maxwell, as sheriff, for the use of his automobile "on calls." Maxwell testified he attempted to keep the charges within $ 75 a month. There was no attempt to justify them on the basis of actual outlays bona fide expended or even mileage. This resulted in the case being discussed on the theory said officer sought compensation in addition to that specifically provided by law. We also mention that the General Assembly had specified the instances in which compensation to said sheriff for mileage was allowable and, so far as there involved, in Sec. 13415, R. S. 1939, Mo. Stat. Ann., p. 7017, Sec. 11793, had expressly prohibited "fees for any other services than those in the two preceding sections enumerated." Nodaway County v. Kidder, 344 Mo. 794, 129 S.W.2d 857, likewise involved income and did not involve bona fide outlays. The instant case was...