State ex rel. Carroll v. The County Court of Cape Girardeau County
Decision Date | 14 March 1892 |
Citation | 19 S.W. 23,109 Mo. 248 |
Parties | The State ex rel. Carroll v. The County Court of Cape Girardeau County, Appellant |
Court | Missouri Supreme Court |
Appeal from Cape Girardeau Court of Common Pleas. Hon. S. M. Green Special Judge.
Reversed.
W. H Miller for appellant.
The writ ought to have been quashed, because relator had an adequate remedy at law, and it is apparent upon the face of the application and writ itself. The power to audit and settle demands against a county is conferred on the county court. R. S. 1889, sec. 3422. When the county court refuses to allow an account appeal is the remedy. R. S. 1889, secs 3434, 3443; Railroad v. St. Louis, 92 Mo. 160; State ex rel. v. Bollinger Co., 48 Mo. 475; State ex rel v. McGown, 89 Mo. 156; State v. Horner, 16 Mo.App. 191.
J. B. Dennis for respondent.
(1) When a legal liability has once been ascertained, it is no longer debatable. It may be enforced by mandamus. School Dist. v. Landenbaugh, 80 Mo. 190. (2) Mandamus will lie to compel the county court to do its duty respecting roads. County Court v. McFarland, 12 Mo. 166. (3) To compel county courts to pay the damages assessed to a person through whose land the road passes. Wilson v. Berkstresser, 45 Mo. 283. (4) It was long ago held that, when the county court refused to draw their warrant on the treasurer of the county, directing him to pay an account which had been allowed by the circuit court to its clerk for office rent, mandamus from the circuit court is the proper remedy. Boone Co. v. Todd, 3 Mo. 140; County Court v. Rutland, 5 Mo. 269. (5) In State ex rel. v. Heege, 40 Mo.App. 650, it was held that a county court acts ministerially in auditing fee bills of justices of the peace and constables for costs, etc., after proper certification thereof by the circuit court and prosecuting attorney, and that mandamus would lie to compel the county court to do its duty, etc. State ex rel. v. Garesche, 65 Mo. 480; State ex rel. v. Smith, 5 Mo.App. 427; State ex rel. v. Smith, 15 Mo.App. 423.
This cause originated in the common pleas court of Cape Girardeau, the alternative writ of mandamus, which issued herein, omitting caption, being as follows:
Thereupon, the parties respondent moved to quash the alternative writ, alleging as grounds that:
First. The petition for said writ on its face does not state facts to authorize the issuance of said writ.
Second. The writ on its face does not state facts authorizing the recovery sought.
Third. Upon its face said writ is illegal and void, and shows that it was improvidently issued.
Fourth. Said writ and...
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