Ward v. County Court, 50 Mo. 401

Ward v. County Court

50 Mo. 401 | Mo. | 1872

Bliss, Judge,

delivered the opinion of the court.

In February, 1869, the relator was ordered by the Circuit Court of Cole county to make an index of the records of said court, which labor he performed. He presented to the court his account for the work, amounting to a little over $1,000, which was allowed, and the allowance certified to the County Court. The latter court refused to audit the account, and the relator sued out a writ of mandamus from said Circuit Court, which'was made peremptory.

The substantial questions are: first, whether the Circuit Court had the right to make the order; second, whether it could fix the compensation ; and, third, whether mandamus would lie.

1. I find no authority at that time to make the order. On the 14th of March, 1870, by an amendatory act concerning indexing records (Sess. Acts 1870, p. 49), the several courts of the State are authorized to procure, if needed, new indexes, but no express power existed as to the Circuit Court records previous to that time. The act of March 2, 1867 (Sess. Acts 3867, p. 108), was confined to the records of the County and Probate Courts. Counsel claim the authority from section 14 of the act concerning courts, etc. (Wagn. Stat. 420), which requires the judges of the several courts to examine and superintend their records, to *402require that the several dockets “and all indexes to the records be correctly made out at the proper time,” etc. This section imposes a very important duty upon the judges, but gives no authority to order new indexes to old records. It refers to the current duties of the clerk, and the judges should see at every term that they are thoroughly performed.

2. Even if the Circuit Court had power to direct new indexes to be made, it has no power to fix the compensation. The act of 1867, above referred to as amended, still leaves the compensation to be audited and paid by the County Court; and if there were no provisions on the subject, the County Court, by virtue of its general powers and duties in regard to claims against the county, is the proper body to which' the claim for compensation should be presented. If this be so, then,

3. Mandamus will not lie. If the Circuit Court, by its order, had authority to fix the compensation, so as to make the duty of the County Court imperative, giving the allowance the force of a judgment, then no discretion would be left, the whole matter would have been adjudicated, and the latter could be required by this writ to provide for its payment. But no such power being given the Circuit Court, the claim, if it exists, is.an ordinary one, to vindicate which the claimant has a specific remedy. He may present it to the County Court, and appeal if not satisfied with their action, or he may bring his action. Having these remedies, he is not entitled to a writ of mandamus. (See Mansfield et al. v. Fuller at al., ante, p. 338.)

The judgment will be reversed and the petition dismissed.

The other judges concur.