County of St. Louis v. Sparks

11 Mo. 201 | Mo. | 1847

Scott, J.,

delivered the opinion of the Court.

This was a proceeding under the second and following sections of the second article of the act concerning County Treasuries; Rev. Code 18B5, page 151, begun by the County Court of St. Louis county against John Sparks, the collector of said county, who failed to settle his accounts with the County Court according to law. The time during which Sparks was in the receipt of revenue for which it was alleged, that he failed to account, was from the 16th March, 1844, to the 20th April of the same year. The County Court adopted as the basis of the settlement, the sum received for the corresponding period of the previous year.— After the court had made a settlement, Sparks appeared at a subsequent term and protested against its proceedings: because the court had no jurisdiction of his person; because it had no jurisdiction of the subject matter; because the court had taken forcible possession of the books and papers belonging to said Sparks, and therefore he could not account; because judgment was not entered up on the best information the court could obtain; because the settlement was made on grounds wholly imaginary and the sum charged was not due. This protest was disregarded and a judgment by default was entered against Sparks for the the sum found due on the settlement with thirty per cent, interest per annum, until paid. After an unsuccessful motion to set aside this judgment on the ground that it was improperly entered as by default, when there was an appearance, an appeal was taken to the Circuit Court, where the judgment of the County Court was reversed; and the County Court submitting to a non-suit, has brought the case here.

It is made the duty of the County Court, to settle the accounts of a delinquent collector on the best information they can obtain. If a settlement is made on such information, and on an appeal to the Circuit Court the judgment is reversed, how can that court proceed to adjust the account? Would it know any thing of the financial condition of the county, its probable revenue, or any thing about it? This matter is entrusted to the County Courts, and because of their knowledge of these things, they are thought peculiarly fit for it. When an account is stated with a delinquent collector, the presumption is, that the account is correct, and it devolves upon him to show it incorrect. The county judges are not required to go into the Circuit Court to give it the information they possessed in making the settlement. Being sworn officers entrusted with the performance of this duty, because of their peculiar fitness for it, their action is presumed to be correct until the contrary is shown. There is no hardship in this on the collector. If he is wilfully in default and will not settle, there must be some power to make the settlement in the mode it can best be effected. If he is not wilfully delinquent, he has an opportunity to appear at thenext term of the court, when he may show cause for his failure and have his account re-adjusted. The section of the statute which is relied on to sustain this appeal from the County to the Circuit Court, confers appellate jurisdiction only. Such jurisdiction does not impart a right to try the cause anew, or on any other evidence than that which was before the court below. Otherwise, the jurisdiction would not be appellate, but original. 1 Brown’s Pari, cases, Eden vs. Bute, 456. If then the Circuit Court had appellate jurisdiction only, and if the settlement of the account by the County Court is to he presumed correct, and the burden of proof is thrown on the party objecting to it, there was nothing in the record which justified the Circuit Court in reversing the judgment of the court below. A protest is a novel step in judicial proceedings, and there is nothing in that in this case which makes it evidence or which shows error in the proceedings of the County Court. The evidence impeaching the settlement should have gone to the Circuit Court with the appeal, and the appeal should have been heard on that evidence. The course of proceeding adopted in this cause was analogous to that on an appeal from the County to the Circuit Court in matters of administration. I know of no authority for such a course.'— The section of the statute on which this appeal was based, is entirely silent as to the mode in which the evidence is to be preserved in the inferior court, so as to be taken to the appellate court, or in what manner the appellate court shall proceed. If the jurisdiction is only appellate5 it is clear the cause can only be tried on the evidence produced in the inferior court. In the case of the County of Boone vs. Carlew, 3 Mo. it., 10, the facts were agreed and there was difficulty in deciding the law arising upon them. But it is impossible to read that case and not to say that on general principles it was one proper for a mandamus. Whether in view of the difficulties suggested, it is not better to resort in all such cases to that superintending control possessed by the Circuit Courts over inferior tribunals, will not now be determined.

In my opinion the proceeding of the Circuit Court was erroneous and should be reversed;

the other Judges concurring.