Corbin v. Adair County, 171 Mo. 385

171 Mo. 385 | Mo. Ct. App. | 1903

GANTT, P. J.

This is an appeal from the circuit court of Adair county.

The appeal was certified to the Kansas City Court of Appeals, but because the county of Adair is one of the political subdivisions of the State the Court of Appeals properly held it had no jurisdiction to hear and determine the case and certified it to this court.

The suit is in equity by the plaintiff, who was clerk of the circuit court and ex-officio recorder of deeds of said county from January 1, 1895, to April 19, 1898, at which last-mentioned date the said offices were duly separated and from that date on to January 1,1899, the plaintiff was circuit clerk only. The object of the bill is to reopen Ms settlement with the connty court, and to collect back from the county certain fees which he claims he paid into the county treasury, to the amount of $1,125.19. He bases his right to recover upon the footing of fraud, mistake of fact and mistake of law and fact, induced by the inequitable and erroneous conduct of the financial agents of said county, its county court.

The answer denies all the allegations of the petition, and affirmatively pleads that the plaintiff made his quarterly settlements each quarter, when due; that the same were carefully examined and approved, and the surplus fees shown on each were paid into the connty treasury and by the proper officials of the county distributed to the proper funds as required by law. The charge of fraud or mistake in the said settlements is expressly negatived.

The cause was tried before Judge Shelton, and the bill dismissed.

The evidence makes it plain that the offices of circuit clerk and recorder of Adair county were separated April 19, 1898; that Adair county contained a population which entitled its circuit clerk to a salary of $1,600, and to pay for necessary deputies and assistants a further sum not exceeding $1,200. When the offices were divided the plaintiff made a final settlement of his accounts as recorder, and after deducting the sum to which he was entitled, paid over the balance to the county treasurer. The plaintiff retained sufficient moneys out of the fees received to pay his salary, and deputies, up to April 19,1898, the date of the separation of the offices. He owed the county nothing and the county owed him nothing.

From April 19, 1898, to December 31, 1898, plaintiff as circuit clerk collected clerk’s fees amounting to $795.31, of which amount he voluntarily paid into the treasury of the county $161.71, the amount of circuit clerk fees earned by him, but not collected prior to the division of the offices. The remainder, $333.60, were fees earned and collected by him after the division. During the time from April 19th to December 31, 1898, he was earning enough to pay his salary, hut had not collected it. He was of the opinion that he could not appropriate any of his old' clerk’s fees earned by him prior to the separation, and of his own accord paid whatever of those old fees he collected into the treasury.

He made out his quarterly statements as required by the Act of 1891 (Laws 1891, page 152), and the county court approved the same, and he paid over the balance. He now seeks by this suit to recover enough to give him his salary of $1,600. He charges fraud and mistake of fact, but the circuit court found, and his own evidence as well as that of the county judges clearly shows, that there was no mistake of fact. All of his quarterly settlements were correct, and there was no demand on him to turn over the old fees he had earned and collected. No misrepresentation or fraud was practiced on him to induce him to do so.' These charges fell to the ground, and the circuit court could not have found otherwise than he did upon the proofs tendered.

It was further developed that the position in which plaintiff found himself was the result solely of a mistake he made as to the law. His settlements were made with a perfect knowledge of all the facts and are binding alike on him and the county unless they can be impeached for fraud, collusion or mistake. [State ex rel. v. Ewing, 116 Mo. 129; State ex rel. v. Shipman, 125 Mo. 436; Callaway Co. v. Henderson, 139 Mo. loc. cit. 520; Scott Co. v. Leftwich, 145 Mo. 26.]

The testimony of plaintiff further discloses that a large amount of fees are due him as circuit clerk, of which at least $1,200 are collectible and when collected by the sheriff or his successor they will belong to him until he has received the amount of the salary earned by him for the year 1898, not to exceed $1,600. [Allen v. Cowan, 96 Mo. 193.] So that it is apparent that the plaintiff is not remediless. To the amount of the difference between the fees collected by him which he had earned in 1898 and retained, and the amount earned and not collected for that year, not exceeding $1,600, he can demand and recover the uncollected fees from Ms successor, and Ms own evidence stows they will be more than sufficient. But these considerations are really outside of the case before us. This bill is predicated upon mistake of fact and fraud, and there is no foundation for either charge in the record, and the judgment of the circuit court dismissing his bill was right and is affirmed.

All concur.