Price v. Johnson County

1. A county court has power to set aside the settlement of a collector for fraud at any time during the term. 2. General expressions made use of in delivering an opinion, must always be construed in reference to the facts and circumstances of the case, in which they are uttered. 3. The county court, having jurisdiction to enter a judgment scught to be enjoined, there is no authority to enter into an examination of-its merits. An injunction is a release of errors at law, and the proceedings on it are not appellate in their nature.

APPEALL from Henry Circuit Court. I. All the proceedings had in the county court after the settlement by complainant on the 37th day of August, 1848, commencing with the revocation of said settlement and ending with the judgment and execution, were void. 1st. Because there was no legal notice served upon the complainant: see Caldwell vs. Lockridge, 9 JMo. R, 362; Smith vs. Rice, 11 Mass. Rep. 507; Meddin vs. Platte County, 8 Mo. Rep. 238; Milan, adm’r vs. Pemberton, 32 Mo. Rep. 598; 3 Sumners R 341. 2nd. Because the county court derive their whole jurisdiction in the premises from the statute, and cannot and do not proceed according to the course of the common law, butmust persue the requisition of the statute, and a departure therefrom will render the proceedings void. The statute did not authorize the court to make an adjustment of complainant’s accounts for revenues arising from taxes, as in the present case, in his absence — notwithstanding they may have cited him to appear. If he failed to appear they might1 have compelled him by attachment which was the only remedy. The statute entitled “an act to establish and regulate county treasuries,” under which the county court seems to have acted, has no reference to a case of this kind; but it is governed by the provisions oí the act entitled “act to provide for the levying, assessing and collecting the revenue,” approved March 27th, 1845: see sections 34,35,40 of article 2 of the latter act, and sections 2Ó, 23, 39, 40, 41, 42, 43, 44, 45,46 of article 3 and section 4 of article '4 of the latter act in connection with article 2 of the former act. 3rd. Because complaintant’s settlement of the 17th August, 1848, is final and conclusive: Downing’s Est. 5 Watts 90. II. The law does not authorize the county court under any circumstances to render judgment against a collector for revenue arising from taxes and licenses as in this case. But even if it did, there could be no judgment given without first notifying the defendant. A proceeding is void for want of notice even where none is directed by the statute, and consequently the judgment rendered against complainant, at the November term, 1848, of the Johnson county court was void, not only because there was no authority in the statute for rendering such a judgment, but because it was rendered without any summons or notice to the complainant: see 3 Sumner Rep. 241; 14 Mass. Rep. 223. III. The decree is erroneous upon its face. 1st. Because it dissolves the injunction and leaves the judgment of the county court in full force, and at the same time, decrees against the complainant the sum of $1,393 94 with 30 per centum per annum from the 28th day of August, 1848: Powers fy Ashley vs. W atts 8 Mo. Rep. 299, 2nd. Because there was no cross bill to support any decree for relief in favor of the defendant. 3rd. Because even if there had been a cross bill, the decree orders the payment of a penalty of 30 per centum per annum from the 28th day of August,' 1848, and courts of equity will not aid in the enforcement of penalties or forfeitures: see Story’s Equity Pleadings, sects. 391, 391 a, & 392; Cooper Eq. PI. 85, 86; Germain vs. Mackie, 6 Paige 288, 2d Story’s Eq. sections 1319 and 1494; Mitford’s Eq. PI. by Jeremy 186, 193, 194, 198; 1 Madd. Ch. 173-4; Cooper’s Eq. chap. 3 sec. 3, page 191 206; Montague vs. Dudman, 2 Vesey 398; 14 Vesey 64; 3 Mere. 693; Livingston vs. Tompkins, 4 I. ch. 431; Watts vs. Watts, 11 Mo. Rep. 547. IV. The decree is not supported by the evidence, and ought to have been given for the complainant; there was no testimony to support the decree, except the testimony of the witness, Reynols, and he was clearly interested, and incompetent: see Horine vs. Horine & Funk, 11 Mo. R. 649; Collins vs. Ellis, 21 Wend. 397; 8 Mo. R. 816; 1 Starkie’s Ev., side pages, 109,110, 111, 112 and top pages 90, 91 and 92; see the distinction between an interest in the result and in the record as an instrument of evidence, 1 Starkie Ev. side page 102, top page 83. The witness, Reynols, was not an agent of the county of Johnson, acting in the name of the county, but was a public officer, acting in his own name as such, and subject to the provisions of the statute creating the office and prescribing its duties. But even if the hypothesis were true that he was an agent in the strict sense of that term he was still an incompetent witness. The principle is well established that an agent cannot be called to deny the effect of his own act: see 1 Greenleaf’s Ev. sec. 417; (Fuller vs. Wheelock, 1 Pickerings’ Rep. 135 in point.) V. After answer it is too late to object to the jurisdiction of the court, on the ground that the parties’ remedy was at law: see 10 Mo. R. 656; 4 I. ch. R. 290, There are only two questions in the record: First. Is the judgment of the Johnson county court void? Second. If it be so, can a court of equity interfere by injunction to prevent it from being carried into effect, or is the party left to his legal remedies against whoever attempts to enforce it? If the county court judgment be not void, then the allegations in the bill that the collector paid into the treasury the whole sum due from him, and that the exparte settlement of the 27th August, upon which the judgment was given is erroneous in fact, furnishes no ground of equity. It is not competent for the circuit court to re-try in this manner a matter submitted by law to another tribunal. No such jurisdiction has been conferred upon the circuit court. Of course under this view of the case, this court is relieved from the necessity of investigating the facts in reference to the correctness of the balance struck against the collector in the exparte settlement, and from deciding the question of the competency of the treasurer as a witness for the county — First. The Johnson county court judgment is not a nullity. The alleged grounds of nullity are, that the act concerning county treasuries, Eev. Satt. p. 308, sects. 2, 3, 4 and 5, does not authorize this proceeding against a collector for his failure to settle and pay over money collected on account of general taxes, the want of notice to the collector that this judgment would be entered against him if he failed to appear and show cause against it, and that previously, at the same term of the court, upon a settlement with the collector of the same account, a smaller balance was struck against him and paid accordingly, and that this was a subsisting settlement of the same account at the time of the settlement of the 28th August, and had the effect of rendering that settlement void. Of these objections in their order. 1st obj. The case is regulated by the act concerning county treasuries, both the person and subject matter of the settlement fall within the words and policy of that, and there is nothing in the general revenue act to exempt either the collectorjor the fund here settled, from its provisions, both acts stand together and there is nothing in the one to limit the general words of the other. 2nd obj. The balance struck against the collector upon the settlement of the 27th August, and the penalty of thirty per cent, per annum became, by lapse of time and the ommission of the party to appear in court and show cause against it, a judgment against him. The court had no discretion over the matter, its only duty was the mere ministerial one of entering up a formal judgment. Neither the act itself nor natural justice required any notice to be served on the defendant to show cause why judgment should not be entered up against him for the balance struck and penalty. He had legal notice of the settlement of the 27th of August, and knew that unless he appeared and showed cause against the balance that should be then struck, a judgment therefor would be entered up against him at the succeeding term. No one supposes that where there is a default against a party, he is entitled to a fresh notice before there can be a final judgment. 3rd obj. The settlement of the 17th of August was annulled by the very act of re-settling the account of the 27th of August, which was on due notice; the last act per se annulled the preceding act, it was a re-settlement of a previously settled account and by striking a new, annulled the old balance. The court had power during the term to vacate this settlement — it could set aside any determination of law or fact, to which it had come, and direct a re-trial. This power to correct its own errors during the term, is a necessary power in every court, and daily exercised by all: Caldwell vs. Lockridge, 9 Mo. E. 362. But the objection here insisted upon is, that if the settlement of the 27th of August is to have the effect of annulling the previous settlement of 17th of that month, that is an effec outside of the notice served upon him, and therefore to that extent the iatter settlement is without notice and so void. It is obvious that this objection is merely formal. The plantiff had made a settlement of his accounts as a collecting officer, and the summons could be construed in no other manner, than as a summons to re-settle, as a notice the former settlement was to be re-viewed. A different construction, for the purpose of annulling the settlement of the 27th of August, it is respectfully submitted trifling with the merits of the matter. Again, admitting that the first settlement must have been vacated before the court would proceed to a re-settlement, and that the re-settlement of the 27th of August cannot on account of the insufficiency of the notice be construed as vacating the settlement of the 17th of August, yet, here there was an express annulling of the settlement by the order of the 23rd of August. This order, however, is said to be void upon the ground that the principles of natural justice forbid that a judicial sentence should effect one without notice, and this principle natural — not positive, law is invoked for the protection of a party who admits, he had information — notice in fact, but contests its legality; that he knew of the intention to re-settle his account, but purposely kept away, that he might set up this matter as a ground of nullity in the re-settlement. If this had been a proceeding between party and party, and one party had given his adversary notice, either written or verbal, that he would move a reconsideration of the settlement, would a reconsideration upon such notice be void? If there had been a rule of practice in the court allowing a reconsideration during the same-term upon (a written motion to that effect, filed in court, would an order made upon such a motion without any other notice he voi ? There is a manifest distinction between the rights of person and property, secured by the. laws of; the land of which we cannot be divested except by a judicial sentence founded upon sufficient notice to appear and contest our rights, and a right secured by the judgment of a court, and which during the term, is in the breast of judges and subject to their control: "Van Wormervs. The Mayor, &c., of Albany, 15 Wend. R. 236. Second question. If theeounty court judgment be a nullity, a court of equity cannot interfere by injunction to prevent it from being carried into effect; the party must be left to his jegal remedies against whoever attempts to enforce it. The doctrine that a party who lies by, and upon the hearing for the first time raises the objection that the remedy is at law, and not in equity, does not of course apply to this ease, where this was the first defence insisted upon by demurrer, and the answer put in only after the objection had been overruled. The bill assumes that the mere nullity of the county court judgment, without any thing more, would not entitle the plaintiff to the active interference of equity, and so it sets up the additional matter, that the plaintiff had paid the county all he owed her, and that the last ballanee struck against him was erroneous in fact. In this view, and only in this view of the case, even according to the plaintiff’s own statement of the law, is it material for this court to investigate the fact? If the judgment he not a nullity, there can be no relief in equity; the matter is then “res judicata,” and no court of law or equity, as a court of mere original jurisdiction, can overhaul it. It may be erroneous both in fact and in law, (an infirmity to which all human judgments are subject) but that furnishes no. ground to review it in this collateral manner. Here, however, the evidence shows that the balance struck in the settlement of the 27th of August was the true balance, due from the collector, and that the balance found upon the preceding settlement of the same term, was fraudulently procured by settingup treasurer’s single receipts to the amount now claimed against him, that had been previously extinguished by the duplicate receipts of June, 1847, being included in and making a part of the sum of $1916 95 covered by that receipt. If the facts are investigated, it is respectfuny'submitted that the evidence most satisfaetori'y establishes this conclusion, and shows that the two inferior tribunals that have passed successively upon the facts of the case, are well warranted in the conclusion to which they respectively came, The treasurer was a competent witness for the county without any release. O’Bryan vs, Louisiana State Bank, 5 Martin’s Louisiana Rep. 305; 2 Starkie’s .Evidence, 753 and notes. If he had any interest in the record as an instrument of evidence, that interest was extinguished by the statute the moment he was sworn as a witness in the cause. Our position is, that admitting all the facts stated in the bill to be true, the plaintiff has stated himself out of a court of equity by showing his remedy to be at taw. If the judgment be not vpid, it is admitted he has no remedy, either at law or in equity, in a court of mere original jurisdiction. If it be void, a mere nullity, then all the cases show that he has an adequate remedy at law against all who attempt to enforce if, and by treating as a nullity any title acquired to his property by an execution sale. And so in either event, whether the judgment be valid or a mere nullity, equity cannot furnish the plaintiff any relief, and this court is not now called upon to pronounce upon the validity ornullity of the county court judgment.