Sanitary Company v. Laclede County , 307 Mo. 10 ( 1925 )

Action on account for goods sold and delivered. Judgment was for defendant in the Circuit Court of Laclede County and, upon plaintiff's appeal, the case was sent to the Springfield Court of Appeals. That court properly transferred the case to this court, upon the ground that Laclede County is a party. The case fell to one of the divisions and came to Court in Banc after a divisional opinion had been prepared, but not adopted, and was argued and submitted at the present term and such divisional opinion was rejected. Thereafter, the case was assigned to the writer.

The petition alleges in substance that, at the special instance and request of the sheriff of the defendant county, plaintiff sold and delivered to defendant county certain goods, etc., of the value of $240.16, plus freight, and defendant paid $61.40 on account thereof, and that the balance of $182.76 remains due and unpaid; that the prices charged were reasonable and proper; that defendant accepted and used said goods, but failed and refused to pay therefor after demand. The itemized statement of account attached to the petition, dated September 12, 1917, shows that the goods sold to defendant were scrubbing soap, insecticide and pinoleum. The terms of payment were sixty dollars every ninety days.

Defendant filed and the trial court overruled its motion to dismiss the case because of alleged want of jurisdiction in the circuit court, on the ground that the account should have been presented to the county court and, if disallowed there, the case could only reach the circuit court upon appeal.

Defendant thereafter filed its demurrer to the petition upon the grounds that said petition did not state facts sufficient to constitute a cause of action, and because the circuit court had no jurisdiction of the person of defendant or the subject of the action, and that plaintiff had no legal capacity to sue. The demurrer was overruled.

Thereupon defendant filed its answer, which was a general denial, and a plea that the sheriff of defendant county had no authority to purchase the goods or to obligate defendant to pay therefor. The trial was before a jury. It found the issues for defendant and, after unsuccessfully moving for a new trial and in arrest of judgment, plaintiff has appealed.

The first point for consideration is the question of the jurisdiction of the circuit court over the subject-matter. Defendant challenged such jurisdiction by motion to dismiss and in its demurrer. Defendant's contention is that the jurisdiction of the circuit court in such cases is derivativeJurisdiction. and not original. Sections 2589 and 2590, Revised Statutes 1919, are cited. As defendant prevailed below and the case is here upon plaintiff's appeal, the point is not here for review upon defendant's exception. However, the question of the jurisdiction of the trial court over the subject-matter of a suit is always an open one and may be raised for the first time in the appellate court.

It is said in 3 Corpus Juris, page 366, section 123: "It is a general rule that if an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court. . . . In some cases it is held that when the lower court had no jurisdiction, there is nothing to support appellate jurisdiction, and that an appeal or proceedings in error will therefore be dismissed. In most jurisdictions, however, the appellate court may in such cases entertain an appeal or writ of error for the purpose of reversing a judgment or order for want of jurisdiction and dismissing the case or directing its dismissal by the lower court."

Missouri is one of the states following the practice of entertaining the appeal in such cases for the purpose of directing the dismissal of the case for want of jurisdiction of the lower court. [St. Louis v. Glasgow, 254 Mo. 262, l.c. 285, 293; Sidwell v. Jett, 213 Mo. 601, l.c. 611; Williams v. Kirby,169 Mo. 622, l.c. 630.]

Even if defendant is correct in its contention that the circuit court has no original jurisdiction over the subject-matter of the case, that is not a reason why the judgment against plaintiff should be affirmed. The only proper order we could make in that event would be to reverse the judgment and remand the cause to the circuit court with directions to dismiss the same. Merely because plaintiff misconceived the proper forum in which to commence its action, if it did, would constitute no reason why it should be foreclosed from proceeding in the proper forum.

But we are satisfied that the circuit court had original jurisdiction of the case. Section 9506, Revised Statutes 1919, provides that "all actions whatsoever against a county shall be commenced in the circuit court." This section clearly settles the jurisdiction of the circuit court, even if we were not fully justified in reaching that conclusion from a consideration of other sections of the statute to which we will refer. See Gammon v. Lafayette County, 79 Mo. 223. In that case the jurisdiction of a justice of the peace was sustained in a suit against a county. Section 5359, Revised Statutes 1879, which was an amendment of General Statutes of 1865, page 225, section 4, took away the jurisdiction of justices of the peace in actions against counties. The Gammon case was ruled upon in General Statutes of 1865, page 225, section 4, as it stood before said amendment and as carried into volume 1 of Wagner's Statutes of 1872 as section 4, page 408.

Were it not for Section 9506, Revised Statutes 1919, we are satisfied that the jurisdiction of the circuit court is fully sustained under other applicable statutes. Subdivision 3 of Section 2436, Revised Statutes 1919, provides that the circuit court shall have concurrent jurisdiction with justices of the peace in all civil actions for the recovery of money founded upon contract when the sum demanded exceeds fifty dollars, etc. Since Section 9506 now excludes jurisdiction of justices of the peace in suits against a county, jurisdiction in that sort of actions is in the circuit court. Subdivision two of Section 2436 provides for exclusive original jurisdiction of the circuit court in all civil cases which shall not be cognizable before county courts, probate courts and justices of the peace and not otherwise provided for by law. Defendant apparently contends that Section 2589 has made such provision otherwise. The function of the county court is merely to audit and settle claims and demands against the county. [Section 2574]. A claim against a county is not technically a suit at all. [Gammon v. Lafayette County, supra.] If a claim is presented to the county court and allowed, well and good. If it is rejected, the claimant may appeal to the circuit court. There is no language in Section 2589 which may fairly be construed as constituting rejection of a demand against a county by the county court a final adjudication of defendant's right to recover against the county.

It is true that one having a demand against a county may present his demand to the county court and if it is rejected, he may prosecute an appeal to the circuit court. But such procedure is not exclusive. He may file his suit in the circuit court, regardless of the amount of his demand (Section 9506) and proceed therein to trial and judgment, if he so elects, regardless of whether or not the county court has rejected such claim. Filing a claim against a county in the county court is not filing an action at all in the legal sense. If it were, then Section 9506 entirely deprives the county court of the right to pass upon such claim, which clearly was not intended.

The evidence offered by plaintiff tended to sustain its demand and need not be specially noticed. The defendant offered evidence tending to prove that the sheriff, upon whose order the goods were sold and delivered, had no authority to order the same and that of they were not needed or necessary. This mightAuthority be a good defense in so far as the goods sold andSheriff. delivered for use at the court house and poor farm are concerned. Section 9507 requires that the agent purchasing supplies for the county be lawfully authorized, and this requirement is not done away with, even though the claim may not be defeated, because the prescribed legal steps have not been followed. No question of that sort can be successfully raised as to any part of the goods ordered for and used at the county jail. Under Section 12549 the jail is required to be kept in good and sufficient condition, and under Section 12551 the sheriff of the county has the custody, keeping and charge of the jail. He, therefore, has full authority to purchase all supplies necessary to keep such jail in good and sufficient condition, which includes sanitary condition, and needed no authorization by the county court to render the county liable for purchases for such jail for such purpose. [Harkreader v. Vernon County,216 Mo. 696.] The sheriff testified that the goods were needed and used at the court house, as well as at the jail. There was no testimony whatever tending to show that the goods ordered were not needed at the jail. Therefore, the circuit court should have directed a verdict for plaintiff, to the extent that such goods were used at the jail, and for that reason the judgment in defendant's favor cannot be sustained.

Over plaintiff's objection and exception evidence was admitted on behalf of the defendant tending to show large purchases of scrubbing soap, insecticide and disinfectants after the goods in question were ordered. Such evidence had no tendency to show that the goods were not needed or necessary at the timeEvidence. they were sold and delivered and only tended to prejudice the jury, because such evidence tended to swell the aggregate amount of such goods contracted for during the period of years covered by the testimony and to make it appear that all purchases were recklessly made and in excess of actual requirements. Such evidence should have been excluded.

Certainly upon the question of whether the goods were needed at the time they were purchased for use at the court house and poor farm, only such goods as had been previously ordered and delivered and reasonably would have remained on hand at the time the goods in suit were ordered could have any legitimate tendency to prove that the goods in question were not needed when ordered.

Instruction one given at defendant's request told the jury that, if the payment of $61.40 authorized by the county court was payment in full of the account, and that defendant rejected the remainder of the account and that such remainder was not necessary or needed by defendant, the jury shouldInstruction. find for defendant. The giving of this instruction was error. The order of the county court authorizing issuance of warrant for $61.40 to plaintiff did not purport to be payment in full and did not recite that the remainder of the account was rejected. There was, therefore, no evidence upon which to base said instruction.

Defendant argues that rejection of the balance of the claim necessarily follows from the fact that part of the account was paid and plaintiff has sued for the remainder. Such inference by no means necessarily follows. It is just as reasonable, for example, to infer from said facts that a part payment was made because of a shortage of funds in the county treasury available for such purpose.

Instruction two given for defendant was erroneous, because all the evidence upon the point tended to show that the goods ordered and used at the jail were necessary, and for the further reason that no authorization of the sheriff to purchase such goods for use at the jail was necessary in order to fix the liability of the county to pay therefor.

For the reasons above stated, the judgment is reversed and the cause remanded for new trial. All concur, except Woodson, J., who dissents, and Walker, J., absent.