Scott County v. Leftwich

• Decision Date: 14 June 1898
• Citation: 46 S.W. 963,145 Mo. 26
• Parties: SCOTT COUNTY v. LEFTWICH.
• Court: Missouri Supreme Court

46 S.W. 963

145 Mo. 26

SCOTT COUNTY v. LEFTWICH.

Supreme Court of Missouri, Division No. 2.

June 14, 1898.

APPEALS FROM COUNTY COURT — WHEN LIE — ADMINISTRATIVE ACTS — SETTLEMENTS WITH CLERK — IMPEACHMENT.

1. Rev. St. 1889, § 3318, confers appellate jurisdiction on the circuit court "from the judgments and orders of county courts." Section 3434 provides that an appeal from a final determination in a county court shall be prosecuted in the same manner as an appeal from a justice of the peace to the circuit court, and shall be tried de novo, without regarding any defect in the county court. Held, that an appeal is not allowed to the circuit court from an order of the county court issued in its administrative capacity.

2. Rev. St. 1889, §§ 5009, 5011, as amended by Laws 1891, pp. 152-154, makes it the duty of the county court to examine the quarterly statement of the circuit clerk, and order the clerk to pay any excess of fees over salary and deputy hire into the county treasury, and, if he fail to do so within 15 days, the court shall cause suit to be brought for such excess. Held, that the court, in examining the statement and issuing the order, acts in an administrative capacity, and not judicially, and hence an appeal will not lie from its determination.

3. A county court has the power to examine the reports of a circuit clerk after he ceases to be clerk, and order him to pay any surplus fees in his hands into the county treasury, and hence such settlements can be impeached only for fraud or mistake.

Appeal from circuit court, Scott county; Henry C. Riley, Judge.

Action by Scott county against John M. Leftwich. Defendant appealed to the circuit court from an order of the county court, and judgment was rendered in his favor, and plaintiff appeals. Reversed.

Joseph L. Moore and J. W. Limbaugh, for appellant. Marshall Arnold, for respondent.

GANTT, P. J.

This is an anomalous proceeding. The defendant, Leftwich, was the duly elected and qualified circuit clerk of Scott county during the years 1891, 1892, 1893, and 1894. He ceased to be clerk of said court June 18, 1894. In the fall of 1894 the county court approved all of his quarterly statements of fees theretofore filed from time to time as required by statute, and discharged him from further accounting. At the March term, 1895, the new county court of said county made an entry on its record reciting that it appeared from the quarterly statements of fees of John M. Leftwich, clerk of the circuit court during the years 1891, 1892, 1893, and 1894, that he had collected fees of his said office in the aggregate as follows:

                The amount collected for the year 1891 ......... $1,857 26
                Compensation allowed him by law
                 was........................... $1,100 00
                And for deputy hire............    300 00         1,400 00
                                                _________         ________
                   Balance due county........................... $  457 26
                                                                 =========
                The amount collected for the year 1892.......... $1,745 90
                Cr. by salary and deputy hire...................  1,400 00
                                                                 _________
                   Balance due county........................... $  345 90
                                                                 =========
                Amount collected during 1893.................... $2,377 55
                Cr. by salary and deputy hire...................  1,400 00
                                                                 _________
                   Balance due county........................... $  977 55
                                                                 =========
                Amount collected in 1894........................ $  798 35
                Less salary and deputy hire ....................    678 75
                                                                 _________
                   Balance due county........................... $  119 60
                

— Making a total of $1,900.31 in excess of salary and deputy hire for said years, and recited that no order had been made on him to pay said balances in the county treasury, and concluded with the following order: "It is now therefore ordered and directed that said John M. Leftwich pay into the county treasury of Scott county said several balances of fees in his hands for said years, to wit: For the year 1891, the sum of $457.26; for the year 1892, the sum of $345.90; for the year 1893, the sum of $977.55; for the year 1894, the sum of $119.60, — making a total sum of nineteen hundred dollars and thirty-one cents. It is further ordered that a certified copy of this order be served on the said John M. Leftwich, and that he pay said money into the county treasury within fifteen days from and after the date of such service. Hon. Wm. H. Bugg, Presiding Judge, dissenting." No notice was given or process issued to said Leftwich to show cause why such order should not be made. Leftwich, however, being verbally advised by one of the county judges of the said action of the said court, came into court on the same day, and filed the following motion to set aside said order: "In the County Court of Scott County, Missouri. February Adjourned Term, 1895. Comes now John M. Leftwich, and, for the purpose of this motion only, moves the court to set aside the order requiring him, the said John M. Leftwich, to settle for fees collected in the years 1891, 1892, 1893, and 1894 by said John M. Leftwich, late clerk of the circuit court and ex officio recorder within and for the county of Scott and state of Missouri, for the reason that this court has no jurisdiction," — which motion the county court overruled, and thereupon Leftwich prayed an appeal to the circuit court, and filed his affidavit and bond, and said appeal was granted, and his bond approved. In the circuit court, at the April term, 1895, the county moved that Leftwich's appeal be dismissed, because no appeal lies from the order of the county court in said matter, which motion the circuit court overruled. Thereupon Leftwich filed his plea in abatement, alleging that the county court had no jurisdiction to make said order to pay over said fees; that he had already accounted for said fees, and been discharged; that he was not clerk of said county when said order was made without notice to him, and without appearance on his part, — and prayed that said proceeding be dismissed. Upon a hearing the circuit court sustained the plea to the jurisdiction, and adjudged that the county take nothing by its writ, and defendant go hence without day, and recover his costs. Motions for new trial and in arrest were duly filed, and overruled, and the county appealed to this court.

The first proposition advanced by the counsel for the county is that no appeal is allowed by our statute from the order of the county court. Section 3318, Rev. St. 1889, confers appellate jurisdiction on the circuit court "from the judgments and orders of...