State v. Wehmeyer

• Citation: 113 S.W.2d 1031
• Decision Date: 01 March 1938
• Docket Number: No. 24544.,24544.
• Parties: STATE ex rel. BECKER v. WEHMEYER et al.
• Court: Court of Appeal of Missouri (US)

113 S.W.2d 1031

STATE ex rel. BECKER v. WEHMEYER et al.

No. 24544.

St. Louis Court of Appeals. Missouri.

March 1, 1938.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be published in State Reports."

Mandamus petition by the State of Missouri, on the relation of William J. Becker, against Albert Wehmeyer and others, Judges and Clerk of the County Court of St. Louis County, to compel issuance of warrants as compensation for professional services. From a judgment dismissing the petition, relator appeals.

Affirmed.

Vernon W. Meyer, of Clayton, for appellant.

George E. Heneghan, of St. Louis, for respondents.

BENNICK, Commissioner.

This is an appeal by the relator from the judgment of the circuit court of St. Louis county dismissing his petition in mandamus.

Relator is a practicing attorney in St. Louis county, while respondents are, respectively, the judges and clerk of the county court of St. Louis county. The case involves the question of the right of relator to have a peremptory writ of mandamus ordering and directing respondents, in their official capacities, to prepare and cause to be issued and delivered to relator a properly drawn warrant of St. Louis county for the sum of $2,000, with interest from November 8, 1933, as the compensation for certain professional services alleged to have been rendered by relator to the county under and by virtue of a contract of employment alleged to have been entered into between relator and the county, acting through the county court.

Relator's prayer for the issuance of the writ was based upon the following charge in his petition:

"Relator further shows to the Court that on the 8th day of November, 1933, he entered into a written, valid, binding, and solemnly executed contract for services to be rendered to the County of St. Louis, Missouri, as its agent and attorney to represent it in handling all legal work and doing everything connected with certain proposed bond issues, including the preparation of necessary court orders calling for an election and submission of said proposals to the electorate of the county, also the preparation of the notice of election, the supervision, if necessary, of the proceedings to be had by the Board of Election Commissioners of said county as to the calling of such election, the giving of the necessary notice, the designation of polling places, the details of the election machinery, the returns of the election, the canvass of the result, the preparation of the necessary court order, or orders, based upon such returns and canvass, and the preparation of the final order, or orders, directing the preparation, execution, registration, and sale of the bonds thereby authorized, and such other legal services as might be necessary and incidental to the making of a complete transcript of the proceedings in such bond issues evidencing their regularity; that said contract and agreement provided that in consideration of the undertaking of the performance of services by the relator, the County of St. Louis, acting through its County Court, agreed that there should be paid to the relator, for services as aforesaid, the sum of $2,000.00 upon the entry of an order of the County Court directing the execution of said contract, the said sum of $2,000.00 to be as a retainer to the party of the second part, and also in full for all services to be rendered by him prior to the date of said election or elections.

"Relator further states that the respondents herein ordered and directed the execution of said contract and that the same be adopted, approved, and filed as a solemn. binding contract of the County of St. Louis, Missouri; that thereafter the said contract was executed by the relator herein and by the County of St. Louis, by the affixing thereon, on the reverse side thereof, of the signature of the Presiding Judge of the County Court of St. Louis County, Missouri.

"Your relator further states that thereupon, on the said 8th day of November, 1933, there became due and owing to him, under and by virtue of the terms of said contract, the sum of $2,000.00, which said sum has never been paid or remitted to the relator though often theretofore requested and demanded of the County Court of St. Louis County, Missouri; that said elections were held on the 15th day of May, 1934, and each, all, and every service required to be performed by relator under the terms of said contract, were performed by him in good faith and in reliance upon the said agreement hereinbefore referred to.

"Relator further states that he has no full, adequate, complete remedy at law unless this Court exercise its extraordinary power and issue a writ of mandamus to compel the respondents herein and each of them to issue a warrant of St. Louis County, Missouri, in the sum of $2,000, plus interest from the 8th day of November, 1933, to date, in satisfaction of said claim and debt."

After waiving the issuance of an alternative writ and voluntarily entering their appearances in the cause, respondents jointly demurred to the petition upon the ground that it failed to state facts sufficient to constitute a cause of action.

The demurrer was sustained by the court, whereupon, relator refusing to plead further, final judgment was entered dismissing his petition.

From the final judgment so entered relator was allowed an appeal to the Supreme Court, presumably upon the theory that the county was a party to the suit as the real party in interest, notwithstanding the fact that the only parties actually named as respondents were the judges and clerk of the county court. However, the Supreme Court held that it was without jurisdiction to hear and determine the cause, and consequently ordered that the same be transferred here.

The case turns in this court, just as it did in the court below, upon the pure legal question of whether relator's petition states facts sufficient to warrant the issuance of a peremptory writ of mandamus directing and compelling respondents to prepare and draw a warrant for the payment of relator's claim. The matter is argued by counsel from two aspects, the one involving the...