Underwood v. Oregon County

• Decision Date: 03 July 1928
• Docket Number: No. 26815.,26815.
• Citation: 8 S.W.2d 597
• Parties: W.W. UNDERWOOD, Appellant, v. OREGON COUNTY.
• Court: Missouri Supreme Court

8 S.W.2d 597

W.W. UNDERWOOD, Appellant, v. OREGON COUNTY.

No. 26815.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Texas Circuit Court. — Hon. W.E. Barton, Judge.

REVERSED AND REMANDED (with directions).

T.W. Mesara and J.L. Bess for appellant.

(1) Paragraph 4 of respondent's answer consisted of an attempt to plead in avoidance irrelevant and redundant matter, which should have been stricken out. The answer was not verified. State ex rel. Davis v. Rogers, 79 Mo. 283; Coolidge v. Charter Oak Life Ins. Co., 1 Mo. App. 109; Union Nat. Bank v. Lyons, 220 Mo. 538; Meeker v. Ry. Co., 255 S.W. 340. New matter in the answer which is not responsive should be stricken out on motion. Title v. Kenedy, 71 S.C. 1; Singleton v. Pacific Railroad, 41 Mo. 465; Hess v. Miles, 70 Mo. 203; State ex rel. v. Landon, 265 S.W. 531. (2) Appellant's right to recover is founded on Sec. 11640, R.S. 1919, which is mandatory in its terms, in so far as appellant's rights are affected, and it authorizes the sheriff to appoint and commission deputies in case of emergencies just as was done in this case. (a) A sheriff and his deputy are ministerial officers with certain restrictions as to their duties. Like other men, as citizens they are, not by reason of their official position, forbidden by law to engage in other gainful professions or occupations which is in harmony with their official duties. The fact that they do receive remuneration or profit from labors outside the office they hold has never been held a bar to their rights to the emoluments of the office. On the other hand where there is no incompatibility in two official positions and the duties are not conflicting in any way, it has been held permissible for one person to fill both offices and receive the salary or fees from each. State ex rel. v. Watson, 71 Mo. 470; State ex rel. Harvey v. Sheehan, 269 Mo. 421; State ex rel. Emmons v. Farmer, 271 Mo. 306; State ex rel. Zevely v. Hackmann, 254 S.W. 53; State ex rel. Saline County v. Price, 246 S.W. 572; State ex rel. Langford v. Kansas City, 261 S.W. 115. (b) It is true that there are certain constitutional and statutory restrictions placed upon certain officers and we concede that there are positions of trust to which a sheriff would not be eligible, but the case at bar is not within such a class. State ex rel. McAllister v. Dunn, 209 S.W. 110; Nicklson v. City of Hardin, 221 S.W. 358; State ex rel. Langford v. Kansas City, 261 S.W. 115. (3) The court was in error in the application of Sec. 1700. R.S. 1919, in taxing the costs against appellant. This is a case in which the circuit court had the sole and exclusive jurisdiction, regardless of the amount of claim or amount for which judgment was rendered. Sec. 9506. R.S. 1919. K.C. Sanitary Co. v. Laclede County, 269 S.W. 395. Justice courts have no jurisdiction in any case against a county. Gammon v. County, 79 Mo. 223. (4) The greater weight of the evidence is in fact by far in favor of plaintiff, and it is admitted by all parties to the suit that he received and acted under the commissions in evidence for the whole time for which payment is asked. Practically the only objection interposed by respondent is founded on the fact that appellant was employed by the Frisco Railway Company to do service other than that which he was performing for the county. There was nothing incompatible in the two positions for the two separate and distinct employers, and we maintain that the fact that appellant received pay from the Railway Company for guarding its property does not in any way lessen the obligation of the county to pay him for full time he served. State ex rel. v. Bus, 135 Mo. 325.

GENTRY, J.

This suit was instituted in the Oregon Circuit Court, the venue being changed to Texas County; it is an action in seven counts, each based on Section 11640, Revised Statutes 1919. In the first count of the petition, plaintiff stated that on July 7, 1922, an emergency existed at Thayer, in Oregon County, by reason of a certain railroad strike; that great excitement prevailed in the town and numerous disturbances were constantly arising between the union and non-union employees of the Frisco Railroad, all of which greatly disturbed the peace and quiet of the community. It was further alleged that these facts were called to the attention of the sheriff, who being satisfied that such an emergency existed, issued to plaintiff a special commission as deputy sheriff of that county for the purposes incident to the emergency aforesaid, and directed him to proceed to Thayer and there serve for a period of thirty days or until such emergency should terminate. It is further alleged that in obedience to such commission, plaintiff went to Thayer and faithfully performed the duties enjoined on him, remaining on duty for a period of thirty days, preventing divers assaults, affrays and disturbances and performing all other and further services necessary for the prevention of riots and disturbances. For such thirty days' services he asked judgment for two dollars per day.

The second count was the same, only the date of the plaintiff's commission was August 7, 1922: the third count was the same, only the date of plaintiff's commission was September 6, 1922; the fourth count was the same, only the date of plaintiff's commission was October 6, 1922; the fifth count was the same, only the date of plaintiff's commission was November 6, 1922; the sixth count was the same, only the date of plaintiff's commission was December 6, 1922.

The answer denied that an emergency existed such as would authorize the sheriff to appoint a special deputy sheriff to be paid by Oregon County, denied that there were numerous disturbances and affrays between union and non-union employees of the Frisco Railroad at Thayer. The answer then alleged that shortly after the strike at Thayer, the Attorney-General of the United States obtained an injunction against the men engaged in such strike, that deputy United States marshals were sent to Thayer to protect the property and that the railroad was taken over and operated under the supervision of the United States Court. It is further alleged that the plaintiff was employed by the Frisco Railroad Company during the time that he was at Thayer and paid five dollars per day for his services, in full satisfaction and discharge of his claim for such services.

A trial before the court without a jury resulted in a verdict for plaintiff on the first count for ten dollars and a judgment for the defendant on the remaining counts. The trial court then adjudged all the costs against the plaintiff. A motion for a new trial being unavailing, plaintiff has appealed.

In support of his claim, plaintiff produced the seven commissions, all signed by the Sheriff of ...