Scott County v. Leftwich
| Decision Date | 14 June 1898 |
| Parties | Scott County, Appellant, v. Leftwich |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court. -- Hon. Henry C. Riley, Judge.
Reversed.
Joseph L. Moore and J. W. Limbaugh for appellant.
(1) The court erred in overruling appellant's motion to dismiss the appeal taken by respondent from the order of the county court. Session Acts of 1891, pages 152, 153, 154, Revised Statutes 1889, sections 5009, 5010, and 5011. If was not a judgment, but an administrative order of the court. Marion Co. v. Phillips, 45 Mo. 75; State v Roberts, 60 Mo. 402; State v. Roberts, 62 Mo 388; Cole Co. v. Dallmeyer, 101 Mo. 57; State v McGonigle, 101 Mo. 353; Sears v. Stone Co., 105 Mo. 236. (2) It was only a preliminary administrative order, necessary to be made prior to a further order for suit on the clerk's bond, in the event he failed to pay over as ordered. And from such administrative order no appeal lies. State ex rel. v. Dent, 121 Mo. 162; Aldridge v. Spears, 101 Mo. 400; Railroad v. St. Louis, 92 Mo. 160; Hall v. DeArmond, 46 Mo.App. 596. (3) Appeals can be prosecuted from the orders and judgments of county courts "only when in the nature of the case the circuit court can try the matter anew and give such judgment as the county court should have given." Sheridan v. Flemming, 93 Mo. 321; State v. Co. Court, 47 Mo.App. 647; Bean v. Co. Court, 33 Mo.App. 635. (4) Nor could that order be pleaded as res adjudicata to prevent a subseqnt court from passing upon and adjusting the settlements in the manner required by law. Reppy v. Jefferson Co., 47 Mo. 68; Sears v. Stone Co., 105 Mo. 236.
Marshall Arnold for respondent.
(1) The question presented is not whether the stated accounts or settlements of county officials, made with the county court, are administrative in their character, and therefore, not appealable, but whether after the officer has duly filed and presented such statements to the county court, and after he has gone out of office, an order of the court, made on him, without the semblance of process, or notice of any kind, verbal or written, to pay over a sum of money, found by the court to be due the county on such settlements, can be appealed from. Owens v. Andrew Co., 49 Mo. 372; Cole Co. v. Dallmeyer, 101 Mo. 63; State v. Allen, 92 Mo. 20. (2) The order of the county court of March 6, 1895, was a judicial ascertainment of respondent's liability to the county. State v. Hickman, 84 Mo. 74; Owens v. Andrew Co., 49 Mo. 372; Cole Co. v. Dallmeyer, 101 Mo. 63. And, as the returns or settlements are admitted to be correct, such order is final. State v. Henderson, 44 S.W. 739. An appeal lies from orders final or judicial in their character. Aldridge v. Spears, 101 Mo. 405. (3) The authority conferred on the county court by section 5011, Revised Statutes 1889, amended by Session Acts 1891, section 32, page 154, in no wise detracts from the final and judicial character of the order. That is a mere mandatory direction to be complied with, preliminary to commencing suit. The default of the officer had previously been adjudged. State v. Dent, 121 Mo. 162. (4) But if said order is a nullity, still an appeal lies therefrom; and the effect of such approval would be to invest the appellate court with such jurisdiction as may be necessary to reverse the cause and dismiss the proceeding. Waters v. Walker, 17 S.W. 108; Gist v. Loring, 60 Mo. 487; Haggard v. Railroad, 63 Mo. 302; Rohland v. Railroad, 89 Mo. 180; State v. Gowing, 27 Mo.App. 389; State v. Allen, 92 Mo. 20. (5) Said order is invalid because at a former term the court determined, as a matter of law, that respondent was entitled to retain the fees in controversy. The mistake made, if any, was in supposing that respondent was entitled to more fees than are allowed him by law. This mistake of law can not affect the validity and binding force of said order. State v. Hickman, 84 Mo. 74; State v. Ewing, 116 Mo. 129; State v. Shipman, 125 Mo. 436.
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 appearing 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 the 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
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 into 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:
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: "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 a day and recover his costs. Motions for new trial and in arrest were duly filed and overruled and the county appealed to this court.
I. 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, Revised Statutes 1889, confers appellate jurisdiction on the circuit court "from the judgments and orders of county courts." Section 3434 provides that in all cases of appeal from the final determination of any case in a county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to the circuit courts and when the case is removed into the appellate court, it becomes possessed of the cause, and shall proceed to try it de novo, without regarding any defect in the county court proceedings. The language of section 3318 is exceedingly broad and comprehensive and when read, as we think it must be, in connection with section 3434, being in pari materia, would include any final judgment or order having the effect of a final disposition of any cause or proceeding in a county court in which that court acts in a judicial character and not in its mere administrative capacity. Colville v. Judy, 73 Mo. 651. That an appeal does not lie from a mere ministerial order of the county court, in which it is acting as the fiscal representative of the county, has been uniformly ruled by this court, both before and since the adoption of section 3318, Revised Statutes 1889, and section 1210, Revised Statutes 1879. Tetherow v. Grundy Co. Ct., 9 Mo. 118; St. Louis County v. Sparks, 11 Mo. 201; Railroad v. St. Louis, 92 Mo. 160, 4 S.W. 664.
Looking now at section 5009, Revised Statutes 1889, as amended by the act of the General Assembly of 1891, Laws of Missouri 1891 pages 152 and 153 and section 5011, and Laws of...
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