State v. Diemer

• Decision Date: 03 March 1914
• Parties: STATE ex rel. WEST, Pros. Atty., v. DIEMER et al.
• Court: Missouri Supreme Court

164 S.W. 517

255 Mo. 336

STATE ex rel. WEST, Pros. Atty., v. DIEMER et al.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. TRIAL (§ 82)—RECEPTION OF EVIDENCE— OBJECTIONS.

An objection to evidence as incompetent, without specification or reason given, is always insufficient.

2. TRIAL (§ 82)—RECEPTION OF EVIDENCE— OBJECTIONS.

An objection to evidence as irrelevant and immaterial, without specification or reason given, is insufficient, except where the evidence is self-evidently good for nothing.

3. APPEAL AND ERROR (§ 231)—OBJECTIONS TO EVIDENCE.

As a general rule, error cannot be predicated on the overruling of general objections to evidence as incompetent, irrelevant, and immaterial; the words "incompetent, irrelevant, and immaterial" being mere epithets, and not grounds or reasons.

4. COUNTIES (§ 206) — OFFICERS — COUNTY COURT—"GOOD FAITH."

"Good faith" on the part of the county court in allowing a claim against the county means that they acted honestly, openly, sincerely, without fraud, and within what they thought was the scope of their authority and discretion.

5. COUNTIES (§ 206)—CLAIMS—EFFECT OF ALLOWANCE.

In the allowance of claims against a county, county courts do not act so strictly as a court, or in the performance of a judicial function, that their allowance or disallowance of a claim is res judicata.

6. COUNTIES (§ 88) — OFFICERS — COUNTY COURT—LIABILITIES.

In the performance of their ministerial duties in allowing claims against the county, the judges of the county court act in a quasi judicial capacity, and, in the absence of fraud, corruption, or malice, they are not personally liable for an error of judgment in allowing and paying a county officer's claim for salary increased during his term.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by the State, on the relation of J. C. West, prosecuting attorney, against B. J. Diemer and others. From a judgment for defendants, relator appeals. Affirmed.

Sam M. Wear and J. C. West, Pros. Attys., both of Springfield, for appellant. Patterson & Patterson and Mann, Todd & Mann, all of Springfield, for respondents.

LAMM, J.

Defendants, during the year 1908, were the judges of the county court of Greene. In January, 1910, this suit was instituted against them in the name of the state at the relation of the prosecuting attorney to the use of said county. Its object was to recover from the said judges personally the sum of $300 salary paid to one Marshall as highway engineer for said county for said year. From a judgment in favor of defendants at a trial to the court without the aid of a jury, plaintiff appeals.

To get at the theory upon which appellant predicates liability, attend to the petition. It alleges that defendants were respectively the presiding judge and the associate judges composing the county court; that, "as such judges of said county court, they acted, voted, and performed all things herein mentioned in their official capacity"; that, as provided by law, they appointed Marshall highway engineer in January, 1908, and by order of record fixed his salary at $100 per month for each month during his term; that his official term was fixed by the law and by the order of the court at two years; that said Marshall entered into a bond and contract in the terms required by defendants, and thereby became the duly appointed, qualified, and acting highway engineer of said county, continuing thereafter to act as such during the year 1908, and received his official salary of $100 per month, paying him in full therefor until the 31st day of December, 1908; that, as such highway engineer, Marshall became a duly appointed county officer within and for said Greene county in an office existing by virtue of the laws of the state; that said county was not under township organization; and that said Marshall during said year was not the surveyor of said county. The petition continues as follows: "And the said defendants, acting in an official capacity as such county court of said Greene county, severally and jointly and under color of their office, and during time when said court was in session, on the 31st day of December, 1908, did then and there unlawfully, willfully, knowingly, fraudulently, corruptly, and in excess of the limitations of the Constitution and laws of the state of Missouri, as to their official, judicial and ministerial duty, and in gross neglect of their official duty, gave their consent, voted, allowed and caused to be ordered and adjudged, executed and delivered to the said Fred J. Marshall a county warrant drawn on the salary fund in the hands of the treasurer of said Greene county, for the sum of $300, which said warrant of the said sum of $300 was then and there increased extra pay, compensation, and salary for the services of said Fred J. Marshall as such county highway engineer within and for said Greene county, for the year of A. D. 1908, and being the sum of $300 over and above the salary and compensation fixed as aforesaid by said defendants as the county court of said Greene county, and for services of said Fred J. Marshall as such highway engineer, which had been then and there wholly performed, and which said warrant for the sum of $300 was then and there paid in full by the treasurer of said Greene county. Plaintiff further says that the said defendants, acting as such county court as aforesaid, did not then and there have any jurisdiction judicially nor ministerially under the Constitution and laws of the state of Missouri to pass, act, order, and render judgment against the said county of Greene in favor of said Fred J. Marshall as such county highway engineer, for the said sum of $300 as an amount and sum being, as aforesaid, an increased, extra pay, compensation and salary for services wholly rendered in said year A. D. 1908, and to cause said county warrant, as aforesaid, to be issued, executed, delivered, and paid to the said Fred J. Marshall, and therefore plaintiff says that the defendants are justly and legally indebted to the plaintiff in the sum of $300, to the use and benefit of the county of Greene in state of Missouri. Wherefore, plaintiff prays judgment against the said defendants, B. J. Diemer, J. P. Reed, and J. T. Phillips, for the sum of $300, and for interest thereon at the rate of 6 per centum per annum from date of filing hereof."

The answer was a general denial, and the cause was submitted nisi on an agreed statement of facts comprising nine subheads, which may be summarized as follows:

First. That, at the times mentioned in the petition, defendants composed the county court.

Second. That at its January term, 1908, said court made an order to the effect that Marshall be appointed to the office of highway engineer for a term of two years under an act of the General Assembly (giving its title) approved March 15, 1907, and was to receive as compensation for his services as such the sum of $100 per month. Before entering upon the performance of his duties he executed and delivered to the court a bond in the sum of $1,000 for the faithful performance of his duties.

Third. That on the same day the said Marshall entered into a contract with the court as party of the second part. The contract need not be reproduced. In brief, it narrates that Marshall agrees to perform the duties of highway engineer from the 6th day of January 1908, to the 31st day of December, 1910 (which, it will be observed, is for about three years). The county court agreed to pay him for his services $100 per month, payable on the 1st day of every month. Marshall agreed to give a bond with certain specified conditions in regard to the faithful performance of his duties, and to account for and deliver to his successor tools, machinery, books, papers, and other property belonging to said county and to the road districts thereof.

Fourth. That during the October term, 1908, and on December 31st of that year Marshall presented an account to the court for an allowance. Said account, omitting the date, had among other items, this: "Due Fred J. Marshall as services as highway engineer as per increase in salary from $1,200 to $1,500 per year for 1908, $300."

Fifth. That on the same day, the county court being then in session, it made an order in the premises reading as follows: "Fred J. Marshall v. Greene County. a/c for 303.04. Now comes Fred J. Marshall and presents an account for $303.04 for services as county highway engineer as per increase in salary for the year 1908, to $1,500.00 per year, $300.00, and express charges $3.04, which is by the court examined and allowed and a warrant ordered drawn on the salary fund for the same." That a warrant for $300 was drawn by order of said court as pay to said Marshall as increase of salary for 1908, and was paid to him, making his salary for the year $1,500.

Sixth. That on said day the said court entered a further order to the effect that the salary of the county highway engineer be and is hereby fixed at $1,500 for the year 1909.

Seventh. That on the date of the appointment of said Marshall (to wit, January 6, 1908) the county court was in session, and had up the question of the appointment of a highway engineer and the payment of his services; that at the time they "conditionally agreed among themselves" upon the appointment of Marshall, and called him before the court; that, "acting in good faith," they stated to him that they could not afford to pay for his services $2,000 (a sum asked by him for his services per year), but that they considered the services of a highway engineer reasonably worth $1,500 per year, if well performed; that, while Marshall had been a competent road commissioner, and in the judgment of the county court, would make a competent highway engineer, yet he was untried in that capacity. On such premises they made a proposition to him to appoint him for two years at a salary of $1,200 per annum, and to contract to that...