State ex rel. Baker v. Franker

• Decision Date: 17 December 1901
• Parties: THE STATE ex rel. BAKER v. FRANKER et al., Justices of County Court, Plaintiffs in Error
• Court: Missouri Supreme Court

65 S.W. 720

166 Mo. 130

THE STATE ex rel. BAKER v. FRANKER et al., Justices of County Court, Plaintiffs in Error

Supreme Court of Missouri, Second Division

December 17, 1901

Error to Schuyler Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Affirmed.

A. D Morris, Ed. F. Payton and Fogle & Eason for plaintiffs in error.

(1) A witness has no independent action for his costs. He has no control of his costs. He must look alone to the party who demands his services, or to the provisions of the statute. State ex rel. v. Oliver, 50 Mo.App. 217; State ex rel. v. Oliver, 116 Mo. 118; Beedle v Meade, 81 Mo. 306; Murphy v. Smith, 86 Mo. 333; Hoover v. Railroad, 115 Mo. 77; McClannahan v Smith, 76 Mo. 428. (2) Relator had an adequate and specific remedy at law to collect his fees. He can not, therefore, maintain this mandamus or equitable proceeding. High's Extr. Legal Rem. (1 Ed.), sec. 15, note 10, and sec. 16; Williams v. Cooper County, 27 Mo. 225; State ex rel. v. Seibert, 130 Mo. 202; Dunklin Co. v. Dunklin Co. Ct., 23 Mo. 449; Adamson v. Lafayette Co. Ct., 41 Mo. 221; State v. McAuliff, 48 Mo. 112; State v. Lubke, 15 Mo.App. 152; State v. Newman, 91 Mo. 445; State v. Williams, 99 Mo. 291; King Wm. Co. Ct. Jus. v. Munday, 2 Leigh (Va.), 165; 2 Dill. on Mun. Cor. (4 Ed.), secs. 819 and 830, and notes. (3) Relator, by his demurrer admits all the facts stated in defendants' return. Dodson v. Lomax, 113 Mo. 555. (4) Relator's petition does not state facts sufficient to constitute a cause of action and respondents can now raise the point for the first time. Secs. 598 and 602, R. S. 1899; State ex rel. v. Hoyt, 123 Mo. 348; Childs v. Railroad, 117 Mo. 414.

Higbee & Mills for defendant in error.

(1) It stands confessed that the fee bills were duly certified and filed by the circuit clerk with the clerk of the county court, and no reason is found why they were not paid. Mandamus is the proper remedy where, as in this case, a county court fails or refuses to perform a ministerial duty. State ex rel. v. Heegan, 40 Mo.App. 650, and cases cited on 652. (2) The provisions of the practice act, authorizing persons having an interest in a controversy, to be made parties, have no application to proceedings in mandamus. State ex rel. v. Burkhardt, 59 Mo. 75. If Dr. Mitchell had a fifty-cent fee, it was a separate matter in which relator had no interest. "Persons having separate interests can not join as relators." 13 Ency. Pldg. and Prac., 646, n. 1; State ex rel. v. Bliss, 41 Mo. 254.

OPINION

SHERWOOD, P. J.

A petition for a writ of mandamus was filed in the office of the clerk of the Schuyler Circuit Court asking that an alternative writ issue to the justices of the county court of that county, commanding them that they cause a warrant to issue, drawn on the proper fund for the amount of $ 43, in favor of the clerk of said circuit court, (which amount had been taxed as costs against the county, and assigned to relator), or that they show cause, etc.

The petition which fulfilled the functions of an alternative writ, and operated as such (by being so treated), was the following:

"To the Hon. Nat. M. Shelton, Judge of the circuit court of Schuyler county, Mo.:

"Your petitioner, James L. Baker, respectfully shows that heretofore, to-wit on the twenty-ninth day of December, 1896, a bill of costs, duly certified by John McGoldrick, J. P., to the clerk of this court in a case theretofore lately pending before John McGoldrick, justice of the peace for Liberty township, in said county, wherein the State of Missouri was plaintiff against William Zugg on a charge of assault and battery preferred by Thos. W. Baird, then prosecuting for said county, was duly examined, approved, signed and certified by the Hon. Andrew Ellison the judge of this court, and by Thos. W. Baird, then prosecuting attorney for this county, taxing the costs in said cause against the county of Schuyler, in which bill of costs so taxed were the following items, to-wit: for witness fees, E. Zugg, witness fee, 90 cents, M. Zugg, witness fee, $ 2.10, Maggie Martin, $ 2.10, Ellis Martin, $ 2.10, J. M. Severson, $ 2.10, Lon Davis, $ 2.10, which items of costs were duly assigned to your petitioner, amounting to $ 11.40.

"That at the November term of this court for the year 1896, a bill of costs duly certified by John McGoldrick, J. P., to the clerk of this court in a case theretofore lately pending before Geo. W. Melvin, J. P., in and for said township of Liberty, in said county, wherein the State of Missouri was plaintiff, and W. H. H. Ayer, was defendant, on a charge of disturbing the peace preferred by Thos. W. Baird, then prosecuting attorney for said county, and duly taken on a change of venue to John McGoldrick, J. P., for said township, and dismissed by said prosecuting attorney, was duly examined, approved, signed and certified by the Hon. Andrew Ellison and Thos. W. Baird prosecuting attorney of this county, duly taxing the costs in said cause against the county of Schuyler, in which bill of costs so taxed were the following items of costs, to-wit: for witness fees, Maggie Martin, $ 2.20, Ellis Martin, $ 4.40, Marilla Zugg, $ 2.20, Lon Davis, $ 4.40, which items of costs were duly assigned to your petitioner, amounting to $ 13.20.

"That on the first day of August 1896, a bill of costs duly certified by G. W. Melvin, J. P., to clerk of this court in a case lately pending before John McGoldrick, J. P., in and for Liberty township in said county, wherein the State of Missouri was plaintiff and Wm. Bradbury was defendant on a charge of unlawfully weighing coal, preferred by said Thos. W. Baird, prosecuting attorney for said county, and taken on change of venue to Geo. W. Melvin, J. P. of said township as aforesaid, and upon trial before a jury said Bradbury was found not guilty and discharged and costs taxed against Schuyler county, was duly examined, approved, signed and certified by the Hon. Andrew Ellison, then judge of this court, and by Thos. W. Baird, the prosecuting attorney of this county, duly taxing the costs in said cause against the county of Schuyler, in which bill of costs so taxed were the following items of costs for witness fees, to-wit: C. C. James, $ 1.50, E. Marvin, $ 1.50, Leo Mock, $ 1.50, N. C. Watkins, $ 3.00, Willis Watkins, $ 3.00, Clarence Mock, $ 1.50, which items of costs, amounting to $ 12, were duly assigned to your petitioner.

"That all of said fees were duly taxed in said several causes against the county of Schuyler, and all of said bills of costs were duly examined and certified by said circuit judge and prosecuting attorney and said items of costs were so duly taxed as proper items of costs and same taxed against said county of Schuyler in said cost bills and all of said items of costs were duly assigned by said several witnesses to your petitioner; that said several bills of costs after being so certified were duly filed in the office of the clerk of the county court of Schuyler county, and that afterwards, on September 7, 1897, at a regular session of the county court of this county duly certified copies of said cost bills, so signed and certified as aforesaid, were duly presented to said county court and your petitioner duly showed to said county court that he was assignee of said items of costs as aforesaid, and demanded that a warrant be issued by said court upon the proper fund of said county in payment thereof; that there was then and there still is on hands in the treasury of said county ample funds to pay said items of costs, set apart and appropriated for that purpose, but notwithstanding it was the duty of said court to issue a warrant therefor as demanded by your petitioner, said court arbitrarily and without any lawful reason therefor refused so to do and still refuses so to do. And your petitioner shows that he is still the owner of said items of costs, and same are wholly unpaid.

"He further shows that the Hons. E. Fraker, William S. Morgan and Andrew Jackson are now the duly elected, qualified and acting justices of the county court of this county. He therefore prays that the writ of mandamus issue against the said E. Fraker, William S. Morgan and Andrew Jackson, justices of the county court of said county of Schuyler, commanding them that they forthwith cause a warrant to be drawn upon the proper fund of said county in favor of the clerk of this court in the sum of $ 43, the gross amount of the items of costs aforesaid so certified and taxed against said county of Schuyler, and assigned to your petitioner, or that they show cause to the honorable circuit court of Schuyler county at its May term to be begun and holden in the city of Lancaster, on the first day of May, next, why they have not done so.

"Higbee & Mills, attorneys for plaintiff.

"James L. Baker, upon his oath says the facts stated in the foregoing petition are true as he verily believes.

"James L. Baker.

"Subscribed to and sworn to before me this thirtieth day of March, 1899. My term expires June 30, 1890.

(Seal) "Edward Higbee,

"Notary Public for Schuyler County, Missouri."

To this petition, treating it as such, was made the following return, omitting caption:

"Now comes the said E. Fraker, W. S. Morgan and Andrew Jackson justices of the county court, and for return to the writ of mandamus heretofore issued in this case say that the plaintiff ought not to have his writ of peremptory mandamus, because they deny each and every allegation set forth in the said alternative writ.

"For further return to said alternative writ the said E. Fraker W. S. Morgan and Andrew Jackson aver the facts to be that the petitioner, James L. Baker, is not the sole party in interest or the owner thereof of the bills of cost alleged in his petition. And t...