Tompkins v. Harris

• Decision Date: 14 January 1922
• Docket Number: No. 2929.,2929.
• Citation: 236 S.W. 368,208 Mo. App. 661
• Parties: TOMPKINS et al. v. HARRIS, Judge, et al.
• Court: Missouri Court of Appeals

236 S.W. 368

208 Mo. App. 661

TOMPKINS et al. v. HARRIS, Judge, et al.

No. 2929.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Certiorari by the State, on the relation of S. R. Tompkins and others, directed to J. W Harris and others, Judges of the County Court of Dunklin County, and another, Clerk of said court. Judgment and decree for relators, and defendants appeal. Reversed and remanded, with directions to enter judgment for defendants.

McKay & Jones and Orville Zimmerman, all of Kennett, for appellants.

Smith & Seed, of Kennett, for respondents.

FARRINGTON, J.

This is an appeal from the judgment of the circuit court of Dunklin county growing out of a certiorari proceeding directed to the judges of the county court of Dunklin county, in which the validity of the proceedings of such court is drawn in question concerning its action in calling an election to determine whether said county would adopt the law relating to the restraining of domestic animals from running at large in said county, as provided by article 5, c. 27, R. S. of Missouri of 1919.

For the purpose of this decision, we will assume that the relators proceeded properly to test the validity of the action of the county court relating to its action and findings concerning the petitions filed by the householders of Dunklin county, Mo., asking that stock be restrained under the provisions of the law relating to that subject under article 5, c. 27, R. S. of Missouri of 1919.

After sifting aside the many questions concerning jurisdiction and practice, the sole question upon which this case must be determined, and the one on which it was determined in the judgment of the circuit court, is whether or not there was any petition on file before the county court upon which it could make the order calling for the election. The record shows that the county court found that a sufficient number of householders of Dunklin county had filed proper petitions asking that an election be called for the purpose of determining whether horses, mules, asses, cattle, swine, sheep, and goats should be restrained from running at large in Dunklin county, Mo.

The record brought up before us, which included the record of the county court, certified to the circuit court under the writ of certiorari, shows that all proper steps were taken both before and subsequent to the election, provided the court had before it petitions sufficient to base the order of election on. That this may be made more apparent, we will state that there were five petitions on file in the county court, signed by a sufficient number of householders of said county, asking that horses, mules, asses, cattle, swine, sheep, and goats be restrained from running at large in Dunklin county. All of these petitions were in exactly the same form and were filed with the clerk of the county court at different times, beginning in May, 1920, the last one being filed on September 3, 1920; that is to say, there were sufficient petitions on file on September 3, 1920, to give the county court authority to call for an election to be held to determine Whether the animals above named should be restrained in Dunklin county at an election to be held. That all of these petitions could be treated as one we have no doubt. Authorities cited by appellants sustain that holding, and no authorities to refute it are cited by the respondents.

It also appears from the record before us that there were three other petitions filed in the county court, signed by 100 or more householders in the townships of Freeborn, Cotton Hill, and Union, of Dunklin county, Mo., petitioning the county court for an election to vote on the question of restraining horses, mules, asses, cattle, goats, swine, sheep, and "domestic geese" (italics ours) from running at large in those townships in Dunklin county, and these petitions were filed on September 4, 1920. These latter petitions were not returned by the county court as a part of its records pertaining to the election called for the whole county. The trial court permitted these to be introduced in evidence, and in view of the fact that the petitions filed on September 4, 1920, were called for in the writ of certiorari and were not named in the return, would permit the relator in the circuit court to introduce them in evidence, at least for the purpose of determining whether the county court was acting on such petitions when it made its order of election for the whole county, and recited therein that it was done on petitions filed on September 4, 1920, and in view of the further fact that the return of the county court to the writ of certiorari did not return any petitions shown to have been filed on September 4, 1920, although the order designated the petitions as filed on that date.

The trial court held (and that is the sole question of importance in this case to be determined here) that, in view of the fact that the order of the county court, in calling the election for the whole county, recited that it was done on petitions filed on September 4, 1920, and in view of the fact that there were no petitions filed on September 4, 1920, which would permit an order of election for the whole county, and in view of the further fact that there were petitions calling for the restraining of animals in certain townships in Dunklin county, which were filed on September 4, 1920, the county court was in fact basing its order on the petitions filed on September 4, 1920, which in no way justified the calling of an election in other than three townships of said county, and that therefore, the county court being without jurisdiction on account of a failure in having a petition before...