Steffen v. Long

CAULFIELD, J. (after stating the facts). — The circuit court did not err in giving the demurrer to the evidence. The defendant’s general denial was sufficient to put the plaintiff to proof of title or right of possession. [Pulliam v. Burlingame, 81 Mo. 111.] And he must have proven such title or right of possession for a certain specific warrant. It was not sufficient that he show generally that he was entitled to have a warrant issued to him. [Cobbey on Replevin (2 Ed.), sec. 73.] Plaintiff failed to make the necessary proof’ A warrant is, in legal effect, a promissory note. [International Bank of St. Louis v. Franklin County, 65 Mo. 105.] As long as it has not been delivered, it is a nullity and the plaintiff can acquire no property interest in it. [Tiedeman on Commercial Paper, sec. 34; Commonwealth ex rel. v. County Commissioners, 20 Pa. County Ct. Reports, 593.] See, also, Wilson v. Knox County, 132 Mo. 387. l. c. 392, 34 S. W. 45, 477, where it was said that as long as a county warrant remains in the possession of the county clerk the contract evidenced thereby remains unexecuted and the warrant within the control of the county court, but when the warrant is delivered the contract is executed “and legislation thereupon must have regard ... to the vested rights [259] acquired by tbe holders thereof.” In the ease .at bar the warrant was never delivered and therefore the plaintiff acquired no title or right of possession. The plaintiff did not have the right to the possession of this particular warrant for another reason, viz., it was not signed by the president of the county court. County warrants are creatures of the statutes and can only be issued in accordance therewith. [Isenhour v. Barton County, 190 Mo. 163, 170, 88 S. W. 759.] The Legislature had the power and authority to prescribe, and did prescribe, that they shall be signed by the president of the county court (Isenhour v. Barton County, supra; R. S. 1899, see. 6797), and without such signature they cannot be lawfully issued. It is clear that even if the plaintiff has a general right to have a warrant issued to him, he has no right to the possession of this particular warrant, and his remedy, if any, lies in mandamus and not in replevin. Whether the plaintiff could proceed even in mandamus against the county clerk, a mere ministerial officer, withholding the warrant because ordered to do so by the ■county court, is a question we need not decide. [See, however, The People ex rel. v. 'Klokke et al., 92 111. 134.] The judgment is affirmed. Reynolds, P, J., and Rortoni, J., concur.