Sears v. Stone County

• Decision Date: 23 June 1891
• Citation: 16 S.W. 878,105 Mo. 236
• Parties: SEARS v. STONE COUNTY.
• Court: Missouri Supreme Court

16 S.W. 878

105 Mo. 236

SEARS v. STONE COUNTY.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

RES ADJUDICATA — ACTION ON COUNTY WARRANT.

An order of the county court allowing a claim against the county, and directing that a warrant issue therefore under the statutory power given to such courts, in Missouri, "to audit, adjust, and settle all accounts to which the county shall be a party," is not a judicial determination of the validity of the claim, so as to prevent want of consideration being set up as a defense in an action on the warrant.

Appeal from circuit court, Christian county; W. D. HUBBARD, Judge.

A. M. Hough and W. S. Pope, for appellant. Gideon & Gideon, T. L. Viles, and A. Hodges, Pros. Atty., for respondent.

MACFARLANE, J.

This is an action on a warrant issued by order of the county court of defendant county for $450, dated November 15, 1876, payable to F. S. Heffernan, and assigned to plaintiff, July 16, 1877. The answer set up want of consideration. The records of the county court of the date of June 5, 1876, showed an order by which Heffernan was employed as an attorney to prosecute suits against the Atlantic & Pacific Railroad Company for the collection of delinquent taxes, and for his services he was to be paid a per cent. of the taxes collected. The records also show the following order, under date of November 15, 1876: "Now comes F. S. Heffernan, and presents his account against the county for legal services rendered of four hundred and fifty dollars, which is allowed by the court, and ordered that a warrant be issued for the amount." The records of the court show no other employment of Heffernan as attorney in any matter for said county. No written contract by the county with Heffernan was made and filed. Evidence was offered by defendant tending to prove that Heffernan collected no taxes and performed no services under his employment, and that there was no consideration for the warrant. This evidence was admitted over plaintiff's objection. Plaintiff was a purchaser of the warrant for value, without notice of the want of consideration. Instructions were asked by plaintiff to the effect that the order of the county court auditing and allowing the claim of Heffernan for legal services rendered was a judicial act of the court, and that the warrant sued upon cannot, under the pleadings, be questioned. This instruction was refused. At request of defendant, the court gave an instruction to the effect that, if the warrant was without consideration, plaintiff could not recover. The proper determination of this case depends upon whether county courts, in auditing claims, and ordering warrants against the counties, act in a judicial capacity, thus giving to their orders the verity and conclusiveness of judgments, or whether they act merely in the character of financial or administrative agents of the counties, by which their acts entered of record have simply the force and effect of contracts which are subject to impeachment for want of consideration. The question was directly passed upon in the case of Reppy v. Jefferson Co., 47 Mo. 68. In this case the suit was against the county, upon a claim which had been previously presented to the county court for allowance, and had been rejected. It was contended that the action of the county court in rejecting the claim was an adjudication of the matter and an estoppel to the pending suit. BLISS, J., in passing upon the question, said that the defense was 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." See, also, Marion Co. v. Phillips, 45 Mo. 76; Phelps Co. v. Bishop, 46 Mo. 69. Our attention has not been called to another case in which the question has been directly passed upon by this court, nor have we been able to find one, though expressions are found in decisions incidentally bearing on the subject which do not appear to be entirely in harmony with the foregoing cases. Thus in Bank v. Franklin Co., 65 Mo. 112, it is said: "In consequence of these provisions of the statute, it follows that each warrant, whether drawn upon a general or special fund, (for the statute makes no distinction,) is both a judicial ascertainment and a written acknowledgment of the indebtedness of the county." Also in State v. Macon County Court, 68 Mo. 49, NORTON, J., says: "We therefore think that in the ascertainment of what is due from a county, and the fund out of which it is to be paid, (both of which must be determined before a warrant can be drawn,) the court is acting judicially;" citing the case against Franklin Co., supra, in which, he says, the principle is fully enunciated. In the case first cited the court adds to what is quoted the significant language that the warrant, when issued, "is to all intents and purposes the promissory note of the county." The judgments, even of inferior courts, when the jurisdictional facts appear upon the face of the proceedings, are not subject to collateral impeachment for want of consideration of the matter adjudicated. The judgment is conclusive on that question. Jeffries v. Wright, 51 Mo. 220; Smith v. Sims, 77 Mo. 269. On the other hand, a non-negotiable promissory note is merely a contract between the parties, and, when sued upon, is subject to any defense that may be interposed in a suit on any other contract or promise. Smith v. Sims, supra. So it is evident...