State ex rel. Buchanan County v. Patton

WHITE, C. The suit is brought against the defendant Ambrose Patton, as clerk of the circuit and criminal courts of Buchanan County, Missouri, and his sureties on his official bond, to recover moneys collected by him in his official capacity and retained, it is claimed, in excess of the compensation allowed him by law. The petition was in four counts, one covering fees collected and retained for the year 1907, one for such fees retained for the year 1908, one for the year 1909, and one for the year 1910. At the January Term, 1914, of the Buchanan Circuit Court there was a judgment for the defendant on the first, second and third counts of the petition, and a judgment for the plaintiff and against the defendant on the fourth count for the sum of $5349.59, with interest from January 20, 1911, making a total judgment of $6,-248.90. From this judgment the appeal is taken. ■ Patton was clerk of the circuit court of Buchanan County, and also, under section 4194, Revised Statutes 1909, eoo officio clerk of the criminal court of said county; he claimed that he was entitled to a salary of $2000 a year as clerk of the circuit court and the same amount as clerk of the criminal court. He also claimed he was entitled to retain for deputy hire in each court the sum of $5.800, under the provision of Section 10722. For the — 558 — year 1909 he collected as fees in both courts an amount sufficient to pay his deputies and assistants, his salary of $2000 as clerk of the circuit court, and $899.52 to apply on his salary as clerk of the criminal court.. In 1910 ho collected fees in the criminal court enough to pay himself $2000 salary for that year; $1100.48, the balance of his salary for the previous year; deputy hire amounting to $2250; besides a large balance which he paid to the county. In the circuit court he collected fees in that year to pay his salary of $2000, clerk hire $5800 and an additional sum to pay over to the county. The amount found against the defendant consists of three items: one item of $1100.48 represented the deficit in the criminal clerk fees collected in 1909 — the amount he retained out of the fees collected the following year to make up his salary of $2000 as clerk’of the criminal court for 1909; one item of $2000 he retained for his salary as clerk of the criminal court for the year 1910; the third item, $2250, was the amount paid for deputy hire in the criminal court for the year 1910, in addition to the amount of $5800 paid to deputies in the circuit court. The plaintiff claimed that defendant was entitled to only $2000 a year salary for serving as clerk of both courts; and, therefore, that he had no right to retain that $1100.48 to apply on the balance of his salary as clerk of' the criminal court for the year 1909, nor to $2000 which he retained as salary as clerk of the criminal, court for the year 1910. The item of $2250 is disputed by the plaintiff on the ground that he was entitled to retain for deputy hire only sufficient sums to pay $5800, the amount provided for his “deputies or assistants” as clerk of the circuit court. The points in issue are, first, whether the defendant was entitled to receive a compensation of $2000 a year as clerk of the criminal court, and the same amount as clerk of the circuit court; and, second, whether he was entitled to retain for deputy hire any more than the $5800 provided by section 10722; that is, whether in addition to that amount paid to deputies and assistants in the circuit court he could also pay any sum for such services in the — 559 — criminal court. The circuit court found against defendant on each of these points. Former Adjudication. I. The answer to the petition pleaded that the right of the defendant Patton to retain the amounts he did for his additional salary was res adjudicata; that suit had been brought against him by Buchanan County for $899.-52, which he appropriated for that purpose for the year 1909; that judgment had been rendered in bis favor, thereby settling the question as to; his right to such salary. The respondent claims that that judgment is not res adjudicata, because the suit in this case is for money not involved in that suit. It is further claimed that the parties are not the same, inasmuch as the sureties on the official bond of Patton are parties to the present suit, while Patton only was a party to the suit by'the county for $899.52. The files in that ease were introduced in evidence. The cause of action stated by the county alleged that defendant had unlawfully retained $899.52. The defendant demurred to the petition, claiming that the petition showed he had retained only $2000 for salary as clerk of the circuit court, and therefore, on its face, showed he had a right to the $899.52 to apply on his salary as clerk ef the criminal court. His demurrer was sustained and judgment entered accordingly. In order that a judgment may conclude the parties in a subsequent suit, the cause in which the judgment was rendered need not involve the same facts nor the same claim or demand which was adjudicated in a prior action; the test is whether there is an identity of issues. A former judgment is conclusive in a second suit between the same parties where the same legal right as that involved in the former suit comes again in issue, although the second suit is upon a different cause of action. This applies to successive suits brought on a continuing or recurring cause of action. [State ex rel. v. Mining Co., 262 Mo. l. c. 502; Exposition Driving Park v. Kansas City, 174 Mo. l. c. 438-9; Turnverein v. Hagerman, 232 Mo. l. c. 704; Edmonson v. Carter, 180 Mo. — 560 — 515; LaRue v. Kempf, 186 Mo. App. l. c. 70-1; Drake v. Mayor of New York, 77 N. Y. 611; So. Minn. Ry. Ext. Co. v. Railroad, 55 Fed. 690; Hirshbach v. Ketchum, 82, N. Y. S. 739; Rankin v. City of Big Rapids, 133 Fed. 670; L., N. A. & C. Ry. Co. v. Carson, 169 Ill. 247.] Nor does it matter that additional parties are made defendants in this case, because the party pleading the estoppel and the party against whom it was pleaded were both parties to the former action. [Young v. Byrd, 124 Mo. 590; Nave v. Adams, 107 Mo. 414.] The matter adjudicated in the former case was whether or not the defendant Patton was entitled to a salary of $2000 a year as clerk of the criminal court in addition to the $2000 he received as salary as clerk of the circuit court. Although the cause of 'action at this time involves hi§ salary for a different time, it was the same official term. The right to both salaries having been determined in his favor, further inquiry into that matter is precluded. Therefore, the trial court was in error in rendering judgment against him for the first two items of $1100.48 and $2000. Deputy Hire. II. Was Patton entitled to retain sums paid deputies or assistants employed in the criminal court in addition to the amount allowed by the law for such belp in the circuit court? Section 4194 in the act creating the criminal court of Buchanan County provides: “'The clerk of the circuit court of Buchanan County shall also act as and be the clerk of said criminal court and shall perform the same duties and receive the same compensation as is or may be allowed to clerks' of circuit courts for like services.” The act creating the criminal court of Buchanan County was passed in 1885, containing the section which is now Section 4194. While that was in force, in 1891, the act was passed fixing the amounts a circuit clerk 'could retain for himself and for deputies and assistants. That act, in article 2, included section 10721, Revised Statutes 1909, as it now stands, and section 10722 as it — 561 — was before the amendments of 1903 and 1909, to be noted below. Section 10721 requires every clerk of a court of record in every county to make a quarterly report to the county court and contains the following, in a proviso at the end: “And in all counties where one person is clerk of the county and circuit courts, or clerk of one court and ex-officio clerk of another court, his statement shall be separate for both courts. ... In all cases contemplated in this proviso they shall he treated as one office and the person shall he allowed an amount not exceeding the amount specified in the next section.” The next section, 10722, provides: “The aggregate amount of fees that any clerk under articles 2 and 3 of this chapter shall be allowed to retain for any one year’s service shall not in any case exceed the amount hereinafter set out.” Then follows in the same section the provision that in counties of the population which would include Buchanan, the clerk shall be “allowed to pay deputies or assistants” the sum of $3500. In an amendment in 1903 the amount was raised to $4800 for such counties having more than one division of the circuit court. In 1909 the section was again amended allowing $5800 for deputies or assistants in such counties which may “contain a city of the first or second class.” This last amendment could apply only to Buchanan County and completed Section 10722 as it now stands. The legislative intent is clear that the sum of $5800 should be the maximum amount allowed for the services of deputies or assistants in both the circuit and criminal courts. And the use of the word “compensation” in Section 4194 contemplates only what the clerk shall receive for his own services, and has nothing to do with the amount allowed for deputies or assistants. — 562 — The judgment is reversed and the cause remanded with directions to render judgment for plaintiff for $2250 and interest thereon from the time the court may find the same became due the county. Roy, G., concurs. PER CURIAM: The foregoing opinion of White, C., is adopted as the opinion of the court, All concur, Paris, J., in result.