State v. Dearing

• Decision Date: 14 July 1925
• Docket Number: No. 19298.,19298.
• Parties: STATE ex rel. JARVIS v. DEARING, Circuit Judge.
• Court: Missouri Court of Appeals

274 S.W. 477

STATE ex rel. JARVIS v. DEARING, Circuit Judge.

No. 19298.

St. Louis Court of Appeals. Missouri.

July 14, 1925.

"Not to be officially published." Mandamus by the State, on the relation of C. T. Jarvis, against E. M. Dearing, Judge of the Twenty-First Judicial Circuit of Missouri. Writ granted.

Clyde Williams, of Hillsboro, for relator.

W. A. Cooper, of Potosi, for respondent.

NIPPER, J.

This is an original proceeding in mandamus, whereby relator seeks to compel respondent, as judge of the Twenty-First judicial circuit of Missouri, to certify to the treasurers of the counties composing said circuit, certain vouchers in payment of relator's salary as official court reporter. Respondent entered his appearance, waived the issuance of our alternative writ, and filed his return, in which he admits all the facts alleged in the petition, except that he denies that relator is entitled to receive and to be paid any sums as a balance for back pay, for the reason that relator accepted a less amount than his full salary, and is thereby estopped to claim any further or additional salary. Relator thereupon filed a motion for judgment on the pleadings.

It is conceded by respondent that relator is entitled to a salary of $3,000 a year instead of $2,000, and that he, as judge of the Twenty-First judicial circuit, is now signing vouchers for relator's salary for that amount. Relator seeks to compel respondent to certify to the correctness of his demands for back pay, or a balance of $83.33 a month, from the 15th day of August, 1919, to the 1st day of February, 1924; this being the difference between the amount relator received, and what he contends he was entitled to receive.

Under the conceded facts in this case, relator is entitled to a salary of $3,000 a year, and has been since the enactment of the law governing salaries of court reporters in 1919. See State ex rel. Geaslin v. Walker, 302 Mo. 116, 257 S. W. 470.

The only question before us is whether relator is estopped from claming the full amount of the salary to which he was entitled by reason of his having accepted `a lesser amount. Our Supreme Court had this question up in the case of State ex rel. Moss v. Hamilton et al., 303 Mo. 302, 260 S. W. 466. In that case Moss, who was clerk of the circuit court of Crawford county, sought to compel the judges of the county court to allow him certain additional salary after he had accepted a less amount. The defense was made in that case that Moss was estopped, because he put in monthly bills for a salary at the rate of $1,600 a year when he...