State v. Butler County

• Decision Date: 29 June 1901
• Court: Missouri Supreme Court
• Parties: STATE ex rel. MARSHALL et al. v. BUTLER COUNTY et al.

64 S.W. 176

164 Mo. 214

STATE ex rel. MARSHALL et al. v. BUTLER COUNTY et al.

Supreme Court of Missouri, Division No. 2.

June 29, 1901.

TRUST FUND—CONTRACT FOR ATTORNEY'S SERVICES—JUDGMENT—PAYMENT.

1. It is no ground for refusing to compel payment of a judgment of the circuit court against a county that it has not been certified to the county court.

2. A decree granting injunction in suit to enjoin the county from using the proceeds of swamp lands sold to drain other swamp lands still held by it does not prevent payment from the proceeds of swamp lands of expenses for attorney's services to protect the lands, though there is general language in the decree that the proceeds of such lands cannot be used for any except school purposes; such language being used in connection with and with reference to the particular proposed use prohibited.

3. Where a county is trustee of swamp lands for school purposes, and there is need of attorney's services to protect the lands, and the county is authorized by Sess. Acts 1895, p. 44, to employ attorneys, and to pay them out of the general county fund, or out of the proceeds of such lands, and it does so employ attorneys, agreeing to pay them a certain amount, and after part of the services are performed it discharges them, they are entitled to have their judgment recovered against the county on account of its liability on the contract discharged out of such fund, as compensation for services rendered, the county expressing a preference to pay it from such fund if obliged to pay it.

Burgess, C. J., dissenting.

In banc. Mandamus by the state, on the relation of W. C. Marshall and others, against Butler county and others. Writ awarded.

A. N. Edwards, W. C. Marshall, and Geo. L. Edwards, for relators. David W. Hill, for respondents.

VALLIANT, J.

This is an original mandamus suit, in which the relators seek to require the defendants, who are Butler county and the judges of the county court, to pay out of the proceeds of swamp and overflowed lands now in its treasury a judgment rendered against the county on account of its liability under a contract made with relators in its capacity as trustee of those lands. The record shows: That title to a large quantity of such lands had, under an act of the general assembly in 1868, passed to the county in trust for school purposes, and that in 1895, through causes which it would be useless now to discuss, the title to nearly all the land had either passed out of the county, or become involved and clouded. Much of it was held adversely, and much of it was being denuded of its timber which was its chief value. Suits were pending and others threatened against the county, seeking to recover all that apparently remained of the trust property. In 1895 the general assembly passed an act (Sess. Acts 1895, p. 44) authorizing counties in that condition to employ attorneys to recover such lands, and to protect and clear up the title to such of it as was threatened or clouded, and to pay the attorneys so employed out of the general county treasury, or out of proceeds of such lands. Under that authority the county court of Butler county employed the relators as attorneys at law to render the services in that act contemplated, and agreed to pay them therefor $5,000 and 8 per cent. of the value of the lands recovered, or the title of which was cleared. That immediately upon their employment the relators entered upon their duties, incurred expenses, and rendered services, until, without fault on their part, and without any lawful excuse, the county court declared the contract of employment canceled, and refused to allow relators to represent the county in that matter, and employed other attorneys to do what relators had been employed to do. Up to that time the petition informs us that relators had incurred liability for abstracts of the records affecting the title to those lands to the amount of $3,000, and had incurred other expenses. They had rendered some services, and were ready to proceed to render whatever were necessary, but were prevented from doing so by the act of the county court. Upon that state of facts, for their cause of action they brought suit against the county, and recovered a judgment for $13,500, which is in full force and unpaid. There is now in the county treasury of the proceeds of those lands more than sufficient to pay the relators' judgment, and the object of this suit is to require its payment out of that fund. The defendants, in their return, do not deny any of these facts. The only facts stated in their return, as if affording a reason for not paying the judgment, are that no certificate of the clerk of the circuit court showing that such a judgment was rendered was filed in the county court, and that in another suit they are enjoined from paying out any of that fund except for school purposes. They also state in their return, as a legal proposition, that, as this is a general judgment against the county, it cannot be paid out of the proceeds of those school lands. Upon the hearing of the case the counsel representing the defendants stated that it was the wish of the defendants to pay the judgment out of the proceeds of those school lands in preference to paying it out of the county revenue, and the only reason they had not so paid it was that they interpreted the...