State ex rel. Zimmerman v. Justices of Bollinger County Court

Bliss, Judge, delivered the opinion of the court. The relator presented a petition to the Circuit Court of Bollin-ger county for a writ of mandamus directed to the county judges, to require them to provide for the payment of certain county warrants ordered by them an‘d drawn upon the swamp land fund, and representing that by a proceeding in garnishment the warrants had been placed in the hands of the sheriff for the use of the relator; that he had presented them to the treasury but their payment was refused, for the reason that the County Court had otherwise disposed of the fund, and had directed him not to pay them ; that he had applied to the County Court to provide funds to be placed in the treasurer’s' hands for the purpose of paying the warrants, but the court refused to do so, and that the county has ample funds applicable to their payment. The return shows no good reason why these warrants are not paid ; does not show that they were improperly issued, or that their amount was not due ; but sets up several rather evasive excuses for the action of the court, as that some of the records of the County Court had been destroyed, and respondents did not know whether the war [478] rants were regularly indorsed, and the petitioner had appealed from the refusal to provide for their payment. If the application thus refused were appealable, and the merits of the case were so involved in the question as to afford relief to which the petitioner is entitled, then it would be a good reason why a mandamus should not issue ; for remedies of this kind are only afforded when all others fail. But it is not appealable. Appeals are statutory, and the general provisions (Gen. Stat. 1865, ch. 136, § 2; Wagn. Stat. 432) giving the Circuit Court appellate jurisdiction over County Courts do not provide for appeals proper, unless there has been other specific legislation in regard to it. (Snoddy v. Pettis County, 45 Mo. 361.) If this application had been a presentation of a demand against the county, a refusal to allow it could have been appealed from, for such appeal is expressly provided for by statute. (Gen. Stat. 1865, ch. 38, § 36; Wagn. Stat. 415.) The refusal is not a judgment, yet the statute has provided this mode of bringing the county into the Circuit Court without process,of which a claimant may avail himself if he chooses. (Reppy v. Jefferson County, 47 Mo. 66.) But being an attempt to induce the County Court to provide for the payment of claims already audited, there was nothing in regard to which an appeal would lie. Were these general warrants, for*which the county was liable, we should first require that the claim they evidence be reduced to judgment. (State v. Clay County, 46 Mo. 231.) But they are drawn upon a special fund, and the county cannot be sued in an ordinary action, and thus that remedy is unavailable; or if the return had set up any equitable excuse for the conduct of the County Court —as that the warrants had been wrongfully obtained or issued in payment of a claim improperly audited — the holder would not be entitled to the benefit of this extraordinary remedy. (The State v. Treasurer of Callaway County, 43 Mo. 230.) But this does not appear, and the judgment of the Circuit Court will be affirmed. The other judges concur.