The State ex inf. Mayfield v. Dougan

• Decision Date: 10 October 1924
• Docket Number: 25299
• Citation: 264 S.W. 997,305 Mo. 383
• Parties: THE STATE ex inf. MAYFIELD, Prosecuting Attorney, ex rel. D. M. COOK et al., v. A. L. DOUGAN et al., Appellants
• Court: Missouri Supreme Court

264 S.W. 997

305 Mo. 383

THE STATE ex inf. MAYFIELD, Prosecuting Attorney, ex rel. D. M. COOK et al., v. A. L. DOUGAN et al., Appellants

No. 25299

Supreme Court of Missouri

October 10, 1924

Motion for Rehearing Overruled October 10, 1924.

Appeal from Howell Circuit Court; Hon. E. P. Dorris, Judge.

Reversed.

W I. Mayfield and John T. Sturgis for appellants.

(1) This is a proceeding in quo warranto, and everything is eliminated except the validity of the incorporation of the special road district by the county court. This proceeding is an attack on the validity of the proceedings and orders of the county court incorporating this road district. This can be tried only on the records of the county court and not by oral or extrinsic evidence. The county court is a court of record and speaks by its records only. Its proceedings can be shown only by its records. (2) It is not competent to supplement, vary, contradict, explain, modify, add to, or take from the records of that court. This is true in a proceeding by quo warranto or certiorari or even in an equity suit, all of which are direct attacks on the proceedings in question. Milam v. Pemberton, 12 Mo. 598; Medlin v. Platte County, 8 Mo. 235; Dennison v. County of St. Louis, 33 Mo. 168; Maupin v. Franklin County, 67 Mo. 327. (a) This rule of law applies especially to proceedings which are judicial in their nature rather than mere ministerial acts. The incorporation of a special road district under the statute in question is a judicial proceeding. State ex inf McAllister v. Drain. Dist., 290 Mo. 62; State ex rel. v. Colbert, 273 Mo. 213. Judicial acts must be proven solely by the records. State ex inf. Crow v. Fleming, 158 Mo. 558; State v. Evans, 83 Mo. 319; State ex rel. v. Gooch, 175 Mo.App. 270. (b) Where a statute vests in an inferior tribunal the duty and power to determine certain essential or jurisdictional facts, the finding of such tribunal as to such facts is final and conclusive, except on an appeal. State ex rel. v. Farrington, 195 S.W. 1046; State ex rel. v. Thornhill, 174 Mo.App. 469; Kochitsky v. Herbst, 160 Mo.App. 443; Lingo v. Burford, 112 Mo. 149, 155. (c) Quo warranto, like certiorari, is a direct attack on the proceedings and judgment of the county court or other such tribunal, but it only attacks the sufficiency of the record as showing jurisdiction, and is not a trial de novo of essential or jurisdictional facts. Errors of fact or law committed in the course of the procedure in the inferior tribunal cannot be inquired into or corrected by such writs. Quo warranto is not a writ of correction or review. State ex rel. v. Fox River Drain. Dist., 238 S.W. 449; Chicago Ry. Co. v. Young, 96 Mo. 39; State ex rel. Rose v. Job, 205 Mo. 1; State ex rel. v. Drain. Dist., 290 Mo. 128; State ex rel. v. Albany Drain. Dist., 290 Mo. 62. (3) No extrinsic or oral evidence being competent to overthrow or affect the action of the county court or other such tribunal when acting in a matter judicial in its nature, it follows that, where the court has acquired jurisdiction, the findings of such court and its judgment of incorporation or other like action is final and conclusive. Whether or not the county court had jurisdiction must be determined solely by its records, and its recited findings of jurisdictional facts are as conclusive as of any other facts. State ex rel. v. Drain. Dist., 290 Mo. 62; State ex rel. v. Russell, 131 Mo.App. 638; State ex rel. v. Colbert, 273 Mo. 198; Fitzgerald v. Special Road Dist., 195 S.W. 697; State ex inf. Crow v. Fleming, 158 Mo. 558. (4) In State ex rel. v. Colbert, 273 Mo. 198, this court held that the county court, in establishing a road district, exceeded its jurisdiction when it changed the boundary lines and incorporated a district different from that prayed for in the petition without a new petition being filed. In that case no remonstrance was filed, as there was in the present case. This court confined its ruling to a case where no remonstrance was filed and held, in effect, that under the terms of the statute, where a remonstrance was on file and both sides were in court, the change of boundary could be made without a new petition. That is this case. State v. Harper, 265 S.W. 473.

Winan Mayfield , Prosecuting Attorney, Curtis & Vandeventer and L. C. Mayfield for respondents.

(1) Quo warranto is a direct attack upon, and is the appropriate direct proceeding by which to attack the validity of the order of the county court incorporating a special road district. State ex inf. v. Colbert, 273 Mo. 209. (2) One who signs a petition directed to a tribunal authorized by statute to act in a given instance, has a right, before the petition has been acted upon by said body, to withdraw therefrom and after such withdrawal his name cannot be counted as a petitioner. City of Sedalia v. Montgomery, 227 Mo. 1, 109 Mo.App. 197; Dagley v. McIndoe, 190 Mo.App. 166; Perkins v. Henderson, 68 Miss. 631; People v. Sawyer, 52 N.Y. 296; Hays v. Jones, 27 Ohio St. 218. (3) Withdrawal from a petition may be made by signing a remonstrance against the same or by any other unmistakable sign which signifies that the person signing the petition has changed his purpose. Hay v. Jones, 27 Ohio St. 218; Dagley v. McIndoe, 190 Mo.App. 172. (4) The withdrawal of a sufficient number of petitioners from a petition to reduce the petition below the standard required by the statute, before the petition is acted upon, deprives the court of its jurisdiction and it cannot legally proceed further in the matter. Dagley v. McIndoe, 190 Mo.App. 166. (5) The finding of the jurisdictional fact by the county court and the recitals of the judgment of the court as to this fact, in this case amount to a fraud. Under the undisputed evidence the court knew that its finding that the petition was at the time of the judgment of the court signed by the owners of the majority of the acres of land in the district being formed was not true in fact, or if they did not know such to be untrue, they had before them, as a part of the record evidence, documents showing said finding to be untrue, and under such circumstances the finding was a legal fraud. State ex rel. v. Woods, 233 Mo. 357; Mullins v. Reiger, 169 Mo. 533. (6) The doctrine of absolute verity of the record does not apply where the want of jurisdiction of the court making the record sought to be annulled is the very question put in issue. Mullins v. Reiger, 169 Mo. 532. (7) A distinction is to be observed between those cases having under consideration a false recital of a jurisdictional fact in a judgment of record, and those where there was erroneous or false adjudication of a fact or facts brought forward in the case. An erroneous adjudication of a fact by a court of general jurisdiction is conclusively true. But a false recital in the judgment of a jurisdictional fact is not. Mullins v. Reiger, 169 Mo. 521; State ex inf. Killam v. Colbert, 273 Mo. 208. (8) The remonstrance filed by the objectors to the petition was a part of the record in this cause. Where the judgment recites its jurisdiction, yet the record or roll disputes the recital in the judgment, the recitals of jurisdiction must give way to the facts as established by the roll or record. Here, although the judgment recites that the petition was signed by the owners of a majority of the acres of land in the district proposed to be established, yet the petition and remonstrance when compared with each other conclusively show that enough of the petitioners have withdrawn from the petition to reduce the acreage represented by those remaining on the petition below a majority of the acres in the district. Hence the recitals in the judgment are false and untrue and must yield to the facts as disclosed by the record. Cloud v. Pierce City, 86 Mo. 357; Silvey v. Silvey, 192 Mo.App. 179; Kunzi v. Hickman, 243 Mo. 103; Levy Dist. v. Securities Co., 268 Mo. 663; William v. Grudier, 264 Mo. 216; Norton v. Reed, 253 Mo. 251; Wells v. Wells, 279 Mo. 67; Orchard v. Land Co., 269 Mo. 652. (9) A proceeding in quo warranto may attack a judgment on the ground of fraud. When such is done it partakes of the nature of a suit in equity and is of course a direct attack upon the judgment. In suits in equity to set aside a judgment on the ground of fraud, it is held that any evidence tending to show that the petition was not signed by the requisite number of petitioners, and that the court had knowledge thereof, is admissible, and if it be established that the court made false recitals of jurisdictional facts, the judgment may be set aside on the grounds of fraud. And it is further held that by the terms "fraud" and "corruption," used in connection with the acts of the court, is not meant criminality, or even moral turpitude, or that the officer doing the act profited thereby, but if the act done amcunted in law to a fraud, then the judgment cannot stand. Burkhart v. Stephens, 117 Mo.App. 434; State ex rel. v. Woods, 233 Mo. 357.

Higbee, C. Railey, C., not sitting.

OPINION

HIGBEE

This is a proceeding in quo warranto instituted in the Circuit Court of Laclede County, against the appellants as commissioners of the Southard-Drew Special Road District, challenging the validity of an order of the County Court of Laclede County incorporating said district. A change of venue was awarded to Howell County, where, on trial on December 17, 1923, it was adjudged "that the order incorporating said district was and is void and of no effect and that the defendants are not entitled to the offices of commissioners of said claimed special road district," and they were accordingly ousted. From this judgment the defendants appealed.

It is conceded that the petition filed in the County Court of Laclede County for the...