The State ex rel. Nolen v. Nelson

• Decision Date: 07 October 1925
• Docket Number: 25231
• Parties: THE STATE ex rel. JOHN H. NOLEN et al. v. JACOB NELSON, Treasurer of Andrew-Nodaway Drainage District
• Court: Missouri Supreme Court

275 S.W. 927

310 Mo. 526

THE STATE ex rel. JOHN H. NOLEN et al. v. JACOB NELSON, Treasurer of Andrew-Nodaway Drainage District

No. 25231

Supreme Court of Missouri

October 7, 1925

Peremptory writ awarded.

Dumm & Cook and Oliver W. Nolen for relator.

(1) There is no substance in the contention of respondent that he cannot be required to pay the warrants issued by the board of supervisors to the relators, for the reason that relators were doing business under a fictitious name and had not registered with the Secretary of State. Assuming that the statute would be applicable to a case of this kind. There is nothing in the act to prevent relators from recovering money which is rightfully due them andfor which warrant have been issued to them. Laws 1919, p. 621. (2) The board of supervisors of said drainage district, having authority under the law to issue the warrants in question, and the warrants having been duly issued and delivered to relators, there remains for respondent, as treasurer of the drainage district, nothing but to pay to relators the amounts named in the three warrants involved, with six per cent interest thereon from the date of their issuance. Secs. 4385, 4401, R S. 1919; State ex rel. v. Holt Co. Court, 135 Mo 543; State ex rel. v. Treas. Callaway Co., 43 Mo 228; Sheridan v. Fleming, 93 Mo. 325; State ex rel. v. Adams, 161 Mo. 349; McGowan v. Ford, 107 Cal. 177; 19 Am. & Eng. Ency. Law (2 Ed.) p. 795.

Dubois & Miller, A. F. Harvey and Henry Davis for respondent.

(1) This court is not warranted in overriding its Rule 32 and assuming jurisdiction in this case wherein concurrent effectual jurisdiction may be exercised by the Circuit Court of Nodaway County, the place where respondent is incorporated and where the evidence in the case is located. State ex rel. v. Bates, 235 Mo. 282; State ex rel. v. Latshaw, 291 Mo. 592; State ex rel. v. Tune, 273 Mo. 255. (2) Respondent's return herein alleges and states facts showing that if jurisdiction be assumed in this case the issues involved raise serious and involved questions of fact, which are to be determined by evidence existing in Nodaway County, and which, if this court assume jurisdiction herein, would have to be determined under the expensive and cumbersome procedure of the appointment of a commissioner and the taking and printing of testimony necessarily involving an expense almost, if not entirely, equal to the entire amount involved; that speedy, convenient and effective justice, with a minimum expense and inconvenience to the parties, can be obtained by a procedure to try the facts in the normal, usual and ordinary way in the Circuit Court of Nodaway County, and that the petition shows no matter of any public importance whatsoever but a simple action for debt; and that relators do not have a clear, unequivocal specific right to have performed the thing demanded. State ex rel. Dolman v. Dickey, 280 Mo. 536; State ex rel. v. Stone, 269 Mo. 342; State ex inf. v. Gas Co., 254 Mo. 532; Am. Fire Alarm Co. v. Board of Police, 285 Mo. 593; Spelling's Extraordinary Relief, sec. 1500. (3) Respondent's return herein alleges and states facts showing that if this court can find any grounds for the exercise of this extraordinary judicial writ, it must still find from the face of the petition that the amount involved is far below the pecuniary jurisdiction of this court and could never reach this court, already overburdened with work, except in this manner, and would be solely cognizable in the trial court and the Kansas City Court of Appeals, to one of which courts it should now be relegated. (4) Relator, the Capital Reclamation Company, is a fictitious person not having registered with the Secretary of State as such and in doing the business and in receiving the warrants in question committed a crime under the laws of the State and cannot maintain this action enforcing an obligation obtained as a part of a criminal act. Laws 1919, p. 621. (5) The board of supervisors of the drainage district had rescinded the warrants theretofore issued by them, and they had given him notice of the rescission, which constitutes a complete defense to the issuance of a writ of mandamus to compel respondent as treasurer of the district to pay the amount of money mentioned in the warrants to the relator. State ex rel. v. Williams, 232 Mo. 71; People v. Klokke, 92 Ill. 137; Harrison Co. v. Ogden, 165 Iowa 325; State v. Cook, 43 Neb. 318; Dey v. Lee, 49 N.C. 238; People ex rel. Hotchkiss v. Broom Co., 65 N.Y. 222; Adams v. Wheatfield, 61 N.Y.S. 738; People v. Bartlett, 5 P. 674; Frankel v. Bailey, 31 Ore. 285; Murphy v. Treasurer, 56 Mich. 505; Van Aken v. Dunn, 117 Mich. 421; State ex rel. v. Benson, 70 Ind. 481. (6) The act of the board of supervisors of the drainage district in auditing the claims of relators and issuing warrants for their payment was not in any sense a judgment. It was not a judicial determination of the validity of the claim so as to prevent want of consideration being set up as a defense in an action on the warrants. The allegation in the return of respondent that there was a failure of consideration for the warrants, but that the board of supervisors did not know that there was such a failure at the time of issuing them is a plea of issuance by mistake which is a defense to this action. State ex rel. v. Williams, 232 Mo. 71; State ex rel. v. Treas. Callaway Co., 43 Mo. 230; State ex rel. v. Adams, 161 Mo. 367; Reppy v. Jefferson Co., 47 Mo. 68; St. Louis Gas Light Co. v. St. Louis, 11 Mo.App. 75; State ex rel. v. Bollinger Co. Ct., 48 Mo. 478; O'Hara v. Fagan, 56 N. J. L. 282; K. C. Natl. Bank v. Hovey, 48 Kan. 25; Simmons v. Davis, 18 R. I. 46; Bailey v. Lawrence County, 2 S.D. 533; People ex rel. v. Assessors, 137 N.Y. 201; Van Aken v. Dunn, 117 Mich. 423. (7) A drainage district warrant is but the means of payment of a claim. It is of no more effect than the check or note of a private person and is subject when sued on to all the defenses that checks or notes are, and the bank upon which a check has been drawn may plead that payment was ordered stopped by the drawer. Mistakes of a county court acting as the financial agent of a county may be inquired into and corrected as well as those of an individual. Chap. 28, Art. I, R. S. 1919; Marion Co. v. Phillips, 45 Mo. 75; Bank v. Franklin Co., 65 Mo. 112; Bank v. Lexington, 74 Mo. 105; Albers v. Commercial Bank, 85 Mo. 176; Steffen v. Long, 165 Mo.App. 258.

Graves, C. J. All concur, except Woodson, J., absent.

OPINION

GRAVES

Original action in Mandamus. Relators were engaged in all kinds of drainage work. The case here stands upon the petition for our writ (to be taken as and for the alternative writ), and demurrer to the return, which in effect is a motion for judgment on the pleadings. As indicated by the style of the case, relators were doing business under the firm name of Capital Reclamation Company. They received from the Andrew-Nodaway Drainage District of Nodaway County, for engineering work, surveying and expenses, three several warrants, aggregating $ 1446.97. These warrants were dated respectively on March 9, 1920, March 9, 1920, and February 10, 1921, were, in the order above, for $ 500, $ 500 and $ 446.97, aggregating the total above named. These warrants were: "By order of the Board of Supervisors of Andrew-Nodaway Drainage District, Nodaway County, Missouri," and were duly signed by the president of the board of supervisors, and attested by its secretary. They were drawn on the "Treasurer of Andrew-Nodaway Drainage District." On the date of their issue, each warrant was presented for payment, but were protested in a memorandum in this language: "Presented for payment this 9th day of March, 1920, but protested for want of funds. Jacob Nelson, Secy-Treas. of Board."

The foregoing is from one of the warrants, and it suffices to say the other two were of the same tenor. It is alleged and not denied that later there were funds in the treasury of said district out of which such warrants could have paid, but the payment thereof was refused. There were funds in the treasury with which to pay the warrants at the institution of this suit.

Our alternative writ was ordered, but by agreement the petition for the writ was taken as and for the writ. The return is of some length, and we will note the questions raised, so far as required, in the course of the opinion. The purpose of the suit is to compel the payment of these warrants.

I. The first contention is that we should not further assume jurisdiction of this case, because it is a case which could have been tried by the circuit court, or some lower court, and that under our Rule 32, this court should not have ordered the alternative writ. Under the Constitution this court has original jurisdiction in mandamus cases. This issuance of such writ is always discretionary, but when once issued, we have most generally followed the case to the end.

In the case of State ex rel. Orr v. Latshaw, 291 Mo. l. c. 600, this court in banc has well said:

"With respect to our Rule 32, the time for respondent to have invoked that as a reason for the denial of the writ was upon the filing of relator's application for the writ, notice of which was given respondent and received by him, or upon the entry of his appearance herein. This court having waived the rule, and having assumed jurisdiction and issued the preliminary writ, we shall continue with the cause."

But the writ was originally well merited in this case, because of a public interest involved in statutes not as yet construed by this court. Section 4579, Revised Statutes 1919, provides:

"The law of this State, under which county warrants are issued, sold, transferred, assigned, presented for payment, and paid, shall...