Rolla Special Road Dist. of Phelps County v. Phelps County
| Decision Date | 03 May 1938 |
| Docket Number | 35009 |
| Citation | 116 S.W.2d 61,342 Mo. 459 |
| Parties | Rolla Special Road District of Phelps County v. Phelps County, Appellant |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court; Hon. Will H. D. Green Judge.
Affirmed.
E W. Allison for appellant.
Plaintiff's second amended petition, on which the cause went to trial prayed for a judgment of $ 1862.21, whereas the court directed the jury, at the instance of plaintiff, to return a verdict for plaintiff and against the defendant in the sum of $ 1683.50. Neither the trial court nor the appellate court may invade the province of the jury by directing the amount they shall find, nor by calculating for the jury the amount they shall return in their verdict. Cates v. Nickell, 42 Mo. 169; Dawson v. Wombles, 111 Mo.App. 532; Proge v. Modern Brotherhood, 126 Mo.App. 693, 180 S.W. 393. To every deposition, there shall be appended the certificate of the officer, by or before whom the same shall be taken, showing that the deposition was reduced to writing in his presence, and was subscribed and sworn to by the witness, and the place at which, and the days, and within the hours, when the same was taken. Sec. 1774, R. S. 1929. County courts are courts of record, and as such they speak through their records nunc pro tunc. Mo. Const., Art. VI, Sec. 36; Secs. 822, 1826, R. S. 1929; State ex rel. Chaney v. Grinstead, 314 Mo. 55, 282 S.W. 721; Henry County v. Salmon, 201 Mo. 136; Cummings v. Brown, 181 Mo. 711; Medlin v. Platte County, 8 Mo. 235. Orders nunc pro tunc are not barred by the Statute of Limitations, and therefore the county court had authority to correct its record, based on minutes of the actual orders of the court at any time after discovery of the error in the record. Pepples v. Stacy, 282 S.W. 451.
Llyn Bradford and John P. Moberly for respondent.
(1) A special road district is entitled to all the road tax money collected on property in such district from levies made under both Sections 7890 and 7891, Revised Statutes 1929. Sec. 8042, R. S. 1929; State ex rel. Special Road Dist. v. Barry County, 302 Mo. 279, 258 S.W. 710; State ex rel. v. Holman, 305 Mo. 195, 264 S.W. 908; Billings Special Road Dist. v. Christian County, 319 Mo. 963, 5 S.W.2d 378. (2) Under the above authorities the action of the county court in withholding the collections in such district from the levy made under Section 7890 was unwarranted and illegal. (3) A nunc pro tunc order at a subsequent term of court can only be made where there is documentary evidence, preserved at the time, showing the true order or judgment of the court. Campbell v. Spotts, 55 S.W.2d 986; State ex rel. Holtkamp v. Hartman, 330 Mo. 386, 51 S.W.2d 22; Calone v. Calone, 17 S.W.2d 566; Burton v. Burton, 288 Mo. 531; Jackson v. Brown, 211 S.W. 893. (4) The legal presumption is that a judgment entered by the clerk is the judgment which was rendered by the court, and, where there is nothing to overcome this presumption, the court cannot, at a subsequent term, order the entry of a new judgment nunc pro tunc. Woolridge v. Quinn, 70 Mo. 370. (5) County courts are required to make some levy under Section 7890, Revised Statutes 1929. Sec. 7890, R. S. 1929. (6) Class 3 of the County Budget Law does not apply to special road districts and appropriations made thereunder cannot be spent within such districts. Law 1933, p. 341, sec. 2. (7) The mandatory provisions of Section 7890, Revised Statutes 1929 are not changed by the enactment of the County Budget Law. Hawkins v. Scott, 66 S.W.2d 540. (8) Notice must be given interested parties of application to amend court proceedings by nunc pro tunc order. Clancey v. Luyties Realty Co., 10 S.W.2d 914; Pulitzer Pub. Co. v. Allen, 134 Mo.App. 229, 113 S.W. 1159. (9) When the evidence is documentary or in writing or matters of record, it is proper for the court to instruct the jury as to the amount of their verdict. Home Trust Co. v. Josephson, 95 S.W.2d 1148, 105 A. L. R. 1063; Lumber Co. v. Harvester Co., 215 Mo. 251; Machine Co. v. Blair, 181 Mo.App. 600.
Westhues, C. Cooley and Bohling, CC., concur.
The respondent, Road District of Phelps County, sued the County of Phelps for money collected as taxes under an alleged levy of ten cents on one hundred dollars' valuation, made pursuant to Section 7890, Revised Statutes 1929 (10 Mo. Stat. Ann., p. 6765). The trial court entered a judgment for plaintiff and the defendant county appealed.
The evidence disclosed that the Phelps County Court, at its May Term, 1934, entered an order whereby it made, among other tax levies, the following:
Taxes were collected in accordance with the above levy. At the February, 1935, term of the county court the following order was made:
The officers of the respondent, Special Road District, made a demand upon the county court for all of the funds collected pursuant to the levies mentioned. This, the county court refused and the present suit was instituted. Respondent's petition was in two counts, but since one-half of the amount collected was paid over to respondent the second count of the petition was dismissed. This second count was based upon a levy made pursuant to Section 7891, Revised Statutes 1929 (10 Mo. Stat. Ann., p. 6766). Section 7890 reads as follows:
"
The funds collected under a levy made by authority of the above section must be paid over to the special road districts in which the funds were collected. [State ex rel. v. Burton, 283 Mo. 41, 222 S.W. 844; State ex rel. v. Barry County, 302 Mo. 279, 258 S.W. 710.] Appellant does not dispute the correctness of this rule and we will not give it further consideration.
Appellant's defense was, that the county court, in fact, did not make any levy under Section 7890; that the order appearing upon the record of the county court was erroneous and not in conformity with the order made. Appellant, after this suit was filed, that is, on October 1, 1935, made what was termed an order nunc pro tunc in lieu of the one entered on record at the May Term, 1934. This order read as follows:
"There is levied for County general revenue purposes 50 cent on each $ 100 valuation of real and personal property, being the amount necessary for such general revenue purposes."
In the nunc pro tunc order all reference to Section 7890, supra, was omitted, and thus the order of the county court was amended by expunging from the record the levy made for road and bridge purposes under Section 7890. This order was alleged to have been based upon the following entry in a minute book of the county clerk's office.
Was that a sufficient memorandum upon which to base a nunc pro tunc order? We call attention to the fact that this was merely a memo for the clerk. Note the State levy reads: ".15 state." The record levy as entered upon the books read as follows:
So the record itself disclosed that the minute entry referred to was only a memo from which a more elaborate and detailed order was to be made. Section 7890 provides that the county court shall make a levy of not more than 20 cents for road and bridge purposes. Respondent interposed a number of objections to the admissibility of the nunc pro tunc entry as evidence in the case. The trial court sustained this objection. This ruling of the trial court must be sustained. The order was made by the county court, long after this suit was filed, without any notice to the respondent, who was at that time a party vitally interested. The county was the defendant, and without...
To continue reading
Request your trial
-
State ex rel. Essex Special Road Dist. of Stoddard County v. Vinson
... ... regardless of who levied the tax. Rolla Special Road ... Dist. v. Phelps County, 342 Mo. 459, 116 S.W. 2d 61; ... Hawkins v. Cox, 334 Mo ... ...