Steffen v. Long

• Citation: 147 S.W. 191
• Parties: STEFFEN v. LONG.
• Decision Date: 07 May 1912
• Court: Court of Appeal of Missouri (US)

147 S.W. 191

STEFFEN v. LONG.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

1. REPLEVIN (§ 63)—ISSUES—GENERAL DENIAL—BURDEN OF PROOF.

A general denial in replevin is sufficient to require plaintiff to prove title or right of possession.

2. REPLEVIN (§ 69)—TITLE OF PLAINTIFF— EVIDENCE.

A plaintiff suing in replevin for a county warrant must, when the answer is a general denial, prove title to or right of possession of a specific warrant, and it is not sufficient to show generally that he is entitled to have a warrant issued to him.

3. COUNTIES (§ 165)—WARRANT—VALIDITY.

A county warrant is in legal effect a promissory note, and until delivered to the payee therein it is a nullity, and he has no title or right of possession.

4. COUNTIES (§ 165)—COUNTY WARRANTS— STATUTORY PROVISIONS.

County warrants are creatures of statute, and the Legislature may, as is done by Rev. St. 1899, § 6797, prescribe that they shall be signed by the president of the county court, and a county warrant without such signature cannot be lawfully issued.

5. MANDAMUS (§ 102) — COMPELLING ISSUANCE OF COUNTY WARRANTS.

Where one has a general right to have a county warrant issued to him, but has no right to the possession of any particular warrant, his remedy, if any, is by mandamus to compel the issuance of a warrant.

Appeal from Circuit Court, Lincoln County; James D. Barnett, Judge.

Action by C. J. Steffen against Nim R. Long. From a judgment for defendant, plaintiff appeals. Affirmed.

Action of replevin to recover the possession of a county warrant. At the conclusion of the plaintiff's case the trial court gave a declaration of law in the nature of a demurrer to the evidence. Whereupon the plaintiff took a nonsuit with leave to move to set the same aside, and afterwards having filed such motion, and it being overruled, the plaintiff prosecuted his appeal to this court.

Plaintiff claims in his petition that on the ____ day of ____, 1908, he was the owner and lawfully entitled to the possession of county warrant No. 350 for $100, dated August 19, 1905, drawn by order of the county court on the treasurer of Lincoln county and payable to the order of the plaintiff. And that afterwards, on the same day, defendant wrongfully withheld said property from the possession of plaintiff and still unjustly detains the same, etc. Defendant's answer contained a general denial; and further stated that at all the times mentioned in the complaint defendant was the county clerk of Lincoln county, acting as such, that on January 7, 1908, the county court made an order duly entered of record, reciting that the plaintiff had subscribed $100 for building a bridge and had failed and refused to pay it, and that on August 19, 1905, said court had issued its warrant No. 350 to plaintiff for $100, "which said warrant is yet in the custody of this court," and ordering the defendant as county clerk to hold said warrant and to not deliver it until the plaintiff pays said subscription into the county treasury. The reply was a general denial.

It appears from the uncontradicted evidence offered by the plaintiff that on August 19, 1905, the county court ordered that a warrant be drawn in favor of the plaintiff for $100, the defendant being then and at all the times in question thereafter the clerk of said court. Such warrant was drawn up by the defendant as county clerk, and some one signed it in the name of the presiding judge of the county court. Who so signed it, or at whose direction it was signed, does not appear; but the evidence on behalf of plaintiff conclusively establishes that it was not signed by the presiding judge. This instrument never left the possession or control of the county clerk and was in his possession and control up to and at the time of the trial, never having been delivered to anybody. Plaintiff testified: "The warrant was never delivered to me. I asked Mr. Long for it twice; once just before I brought this suit, and the other in 1907." The first time plaintiff asked for it was in ...