82 Mo. 484 | Mo. | 1884
The plaintiff as coroner of Mississippi county, filed his petition for a mandamus to compel the defendants as j ustices of the county court of Mississippi countyr to “ audit and allow the statement of fees ” certified to them, by the said coroner.
The petition alleges that on November 7th, 1881, the body of an unknown dead man was found in his county. He issued his warrants. A jury was summoned, and an inquest held. A verdict returned and the fees and expenses certified to the county court. That there being no relative or friend of the deceased, nor any person willing to bury the. body, nor any person whose duty it was to attend to such burial, petitioner caused the same to be buried. That the county court “ refused either to audit or allow the statement of costs or expenses or any part thereof.”
The respondents, in their return to the alternative writ, admitted that the petitioner was coroner, that a man had died, that the inquest was held and the body buried. But.
The circuit court, on trial awarded a peremptory writ, from which the defendants appealed to this court.
I. Section 5136, Revised Statutes 1879, directs when coroners shall hold an inquest over a dead body. Section 5150 directs under what circumstances he shall bury the body. Section 5156 provides that the coroner shall present to the county court a certified statement of the costs and expenses for which the county is liable; and the “ county court shall audit and allow the same.” Section 5157 provides that “ no costs or fees to the coroner shall be allowed by the county court, in any case of the view of or inquest on a dead body, unless it appears to the court that the coroner, either before or during the view or inquest, had reasonable cause to believe that such body was that of a person who had cometo his death by violence or casualty, or who being unknown, was found dead within such county.” This action evidently fixes a judicial discretion in the county court, as to the auditing and allowing fees and costs in such cases. This must “ appear to the court.” And upon the presentation of the certified statement provided for in section 5156, if it does not appear to the court that the coroner had reasonable cause to believe that the body was that of a person who had come to his death by violence or casualty, or who being unknown, was found dead in the county, it is clearly the duty of the court, in the proper exercise of its
The statute evidently fixes on the. county court the duty of deciding on the case before it whether it is such as comes within the law, and for the expenses of which the county is liable. The case of Boisliniere v. Board of County Commissioners, 32 Mo. 375, is not in point because the statute has been changed. Under that statute it was the duty of the coroner to decide. Under the present it is made the duty of the county court.
II. Mandamus is one of those extraordinary writs that can be resorted to only when there exists no other specific remedy. State ex rel. Bohannon v. Howard County Court. It is never resorted to to enforce the payment of a debt, when it can be collected by suit, unless the tribunal having jurisdiction refuses to act; in which case the oi’der would be, not to render a specific judgment, but to proceed with the cause. Mansfield v. Fuller, 50 Mo. 338; Ward v. Cole County Court, 50 Mo, 401; Strahan v. Audrain County Court, 65 Mo. 644. In this case upon presentation of the expenses and fees for which it is alleged Mississippi county is liable, and the refusal of the court to allow them, there existed the undoubted right to appeal. R. S.1879, §§ 1210, 1216. A specific legal remedy existed, and hence mandamus will not lie.
The judgment below is reversed and the writ dismissed.