State ex rel. Hopkins v. Justices of Buchanan Cnty. Court

• Decision Date: 31 August 1867
• Citation: 41 Mo. 254
• Parties: STATE ex rel. F. G. HOPKINS, Plaintiff, v. JUSTICES OF BUCHANAN COUNTY COURT, Defendants.
• Court: Missouri Supreme Court

41 Mo. 254

STATE ex rel. F. G. HOPKINS, Plaintiff,

v.JUSTICES OF BUCHANAN COUNTY COURT, Defendants.

Supreme Court of Missouri.

August Term, 1867.

Petition for Mandamus.

The petition was as follows:

Your petitioner, F. G. Hopkins, respectfully represents that he is clerk of the Circuit Court of Buchanan county, State of Missouri, duly elected, qualified, and acting as such, and was at the time of the rendering of the services mentioned in the fee-bill hereinafter set forth; that at the____term of the Circuit Court within and for the county aforesaid, H. W. Smith was by the grand jury indicted for selling whiskey without a license; that said indictment was at said term duly returned into court endorsed “a true bill” and signed by the foreman; that the process was ordered thereon by the court and duly issued by petitioner, and served by the sheriff; that all of the services charged in said fee-bill were rendered by your petitioner in the discharge of his duties as clerk of said court; that at the ____ term of said court, ____, 18--, the circuit attorney, with and by the consent of said court and the agreement of the defendant in said indictment, dismissed the same at the costs of said defendant, and judgment was rendered accordingly; that execution was issued thereon, but the same could not be collected; that said defendant was wholly insolvent, and is still insolvent; that said fee-bill was duly examined by the judge and circuit attorney of the court in which said judgment was rendered, and certified to the County Court for payment, according to the provisions of the statute in such cases made and provided, but said County Court, consisting of defendants, refused and still refuse to allow and order the payment of the same or any part thereof; he, your petitioner, therefore prays for a mandamus against said defendants, returnable this day, requiring them to pay said fee-bill, or show cause why a peremptory mandamus compelling them to do so should not be issued.

Answer of defendants:

The plaintiff and defendants agree that the petition herein filed for a mandamus may be considered at the present term upon the following agreed state of facts:

1. It is agreed that the services were rendered as charged, but the defendants objected to paying them upon the following grounds: 1st. In this case the cause was dismissed, by the agreement of the prosecuting attorney and the defendant, without conviction or a plea of guilty. The County Court objects to pay the costs in said cause because there is neither a conviction or acquittal, but simply an arrangement between the attorney and defendant that he shall not be prosecuted if he will pay the costs.

2. If this judgment has any validity the County Court claims that it amounts only to a naked dismissal, and the costs charged by the circuit clerk for issuing execution, and all increased costs based upon the assumed validity of the judgment against the defendant, are improperly charged against the county.

Woodson, for plaintiff.

The plaintiff relies upon the 219th chapter of the General Laws, commencing at p. 865; also upon the case of State v. Beard, 31 Mo. 34.

FAGG, Judge, delivered the opinion of...