County of St. Louis v. Sparks

An appeal will not lie from a settlement made by the County Court, of the lector who fails to settle. accounts of a col-

ERROR to St. Louis Circuit Court. 1. While the matter remained in the County Court, it was not a suit or action between parties. It was a proceeding required by statute, as the official duty of the County Court to settle the accounts of a public officer, and in a certain event to enter judgment against him. R. C. 1835, p. 151, tit. County Treasuries, art. 2; see 9 Mo. R., 118, Tetherow vs. County of Grundy. 2. The officer though he might feel ever so much aggrieved by the judgment of the County Court, could not remove the cause to a higher court by appeal. The appeal is in no case a matter of right, as the writ of error is by statutel" And the superintending control which the Circuit Court has by the constitution, can only be exercised by the legal and accustomed writs — such as writs of error — certiorari—mandamus—procedendo—prohibition. Appeal from the County Court is given in enumerated cases only; and is not given by any statute, either to the party as a remedy, or to the court as a means of jurisdiction in such case as this. And so this case never was lawfully in the Circuit Court. In administration matters, appeal is given in specified cases only. R. C. 1835, p. 63. 3. Supposing the jurisdiction of the Circuit Court, still it was error to reverse the judgment of the County Court. There was no bill of exceptions to preserve the facts and motions in the County Court. There was nothing lawfully before the court but the naked judgment of the County Court. 4. Supposing the judgment of the County Court rightly reversed, still the Circuit Court had no power to try the cause, but ought to have remanded it. There were no facts before the court, and no issue of fact to try. The settlement of the collector’s account, and the ascertainment of the balance against him, is not the thing appealed from. The Tecords of the County Court — the tax books — the former settlements with the same officer — the accounts and vouchers, were not before the Circuit Court nor in its reach. The County Court is the peculiar statutory agent to settle the accounts of collectors. And the Circuit Court has no power to audit and settle such accounts. It is not such case as the Circuit Court, with or without a jury, is competent to try. 3 Mo. R., 103, Boone county vs. Todd. 5. But even if the Circuit Court had gotten possession of the case, so as to be invested with all the powers of the County Court, still it was great error in the Circuit Court to decide that the county as a litigating plaintiff, must proceed with the trial of the cause, or take a non-suit — because in the settlement of the account there is not and cannot be a plaintiff. The settlement is but the discharge of a statutory duty of the County Court in regard to every collector. And the Circuit Court having reversed the judgment of the County Court, and proceeded to do what the County Court ought to have done, must adopt the prescribed means, and follow the prescribed course. That is, “the court shall adjust the accounts of such delinquent, according to the best information they can obtain, and ascertain the balance due to the county.” E. C. of 1835, p. 151, sec. 2. And by se'c. 5, “unless the delinquent appear on the first day of the next succeeding term, and shew good cause for setting aside the settlement, the court shall enter up judgment for the amount due, with 30 per cent, per annum until paid, and issue execution therefor,” 1. An appeal lies from the judgment and order in this case. SeeR. Laws 1835,4 subdivision of sec. 8,155. An appeal is given by the section referred to, unless expressly prohibited by law; there being no law prohibiting an appeal in this case, the appeal was properly taken. It probably was never intended by the legislature that the action of the County Court should be final, and certainly no such intention can be implied. County of Boone vs. Carlew, 3 Mo. R., 10 & 11. 2. The appeal being propérly taken, all the incidents of an appeal flow from it, and amongst others, that of a trial de novo. The common law knew nothing of appeals; they were introduced by the statute, 7 William, 3, chap. 8, and by other statutes passed immediately after; the right to offer new evidence was given and appeals were then upon the footing upon which they now stand. The very word appeal suggests a new trial, and new evidence in the appellate court; from the time the word appeal was introduced in civil cases into the common law, a new trial upon the merits has been used in disposing of the case appealed. We have by statutory provision in this State, what is called an appeal. This is a creature of, and regulated by statute, and though called an appeal to distinguish it from a writ of error, is only so far an appeal as to take the case from the inferior to the appellate court, and to stay execution without the expense and trouble of an application to the appellate tribunal for an order to stay proceedings, but it is no farther an appeal than this; all subsequent proceedings are precisely like those on writs of error, and this statutory appeal is confined to taking cases from the Circuit to the Supremo Court, and from County Courts in certain cases sitting as a Court of Probate to the Circuit Court. The Supreme Court of this State, we think, has settled this question in the case of the County of Boone vs. Carlew, 3 Mo. R., 12; see R. C. of 1835, p. 151.