Morgan v. Owen ( 1906 )

YALLIANT, J.

— Plaintiff sues for damages for .an alleged trespass vi et armis. He says in his petition that on January 13, 1903, he was peaceably and lawfully occupying a certain ‘ ‘ room or office in the northwest part of the court house in Benton county” when and where the defendants assaulted, struck and wounded plaintiff and forcibly put him out of the room, whereby he suffered $3,000 actual damages, for which he asks judgment, and asks, also, for $2,000 punitive damages.

The answers of the defendants are substantially to the effect that the plaintiff was in the room in the court house where were the records appertaining to the county court and that he was withholding the same from the county court so as to obstruct the court in the performance of its business, whereupon the court made an order directing the sheriff of the county to put the plaintiff out of the room and take possession of its records, and that the sheriff in obedience to that order, first demanding of plaintiff that he withdraw himself from the room and yield up the records which the plaintiff refused to do, gently laid his hand on the plaintiff and led him out of the' room without violence or injury. The answers also assert that the plaintiff had no right to the custody of the records, hut that one Claus H. Borchers was the county clerk and entitled to hold the records of the office.

The evidence on the part of the plaintiff tended to show as follows:

For the term next previous to January 1, 1903, the plaintiff had held the office of county clerk; he was a candidate for re-election at the election in November, 1902, and one Borcbers was bis opponent. Borcbers’ name was printed on tbe official ticket as Henry O. Borcbers; be received tbe majority of tbe votes cast and was elected. A certificate of election was duly issued to him and forwarded to tbe Secretary of State. Borcbers, as in compliance with tbe statute, filed in tbe office of tbe Secretary of State a list of bis election expenses, with bis affidavit that it was correct; this affidavit was signed C. H. Borcbers. Tbe commission, however, issued to Henry C. Borcbers, and be gave bond and qualified accordingly. Tbe man’s real name was Claus Henry Borcbers, be was commonly known in tbe county as Henry Borcbers, and usually signed bis name C. H. Borcbers. After receiving bis commission and qualifying be demanded possession of tbe office and plaintiff refused to give it up to him, on the ground of tbe discrepancy in tbe name in tbe commission.

On January 12,1903, there was a special session of the county court held. That court usually held its sessions in tbe court room upstairs, though sometimes it bad held sessions in tbe room down stairs where these records were, and which was the apartment in tbe court house occupied by tbe county clerk. On this occasion tbe judges of tbe county court, with Borcbers and tbe sheriff, assembled in tbe county clerk’s office and opened court. Then tbe presiding judge called on tbe brother of tbe plaintiff, who was present and who bad been when tbe plaintiff was clerk tbe active deputy in tbe office, to produce tbe books needed for tbe court’s business. This brother of tbe plaintiff informed tbe court that be would furnish them all tbe books and records they needed provided they would allow him as deputy for bis brother to perform tbe duties of clerk and recognize tbe plaintiff as tbe county clerk, to which tbe court would not agree. On tbe next day, January 13th, after some further discussion, tbe plaintiff’s brother offered to deliver the necessary books of record, etc., to the presiding judge to be taken upstairs for the use of the court, provided the presiding judge w mid promise to return them to him as soon as the court had finished using them. To this the presiding judge agreed and taking the books and records, all the members of the court went out of the office. In a short while they all came back, bringing the books and records back and saying they would not accept the use of them on those terms.

Afterwards on that day the county court made an order directing the sheriff to go into the room occupied by the plaintiff containing the county court records and put him and his brother out, and take possession of the books and records. This order the sheriff executed without violence; he laid his hand on the plaintiff and led him out into the hall, then returned and led the brother out; neither offered any resistance and the sheriff used no force.

The sheriff and his deputies who were present, the judges of the county court, and the prosecuting attorney, who advised the proceeding, were all joined as defendants in this suit.

The verdict and judgment were for the defendants and the plaintiff appealed.

The main point presented in the briefs for appellant is that the county court had no jurisdiction to try and determine between the plaintiff and Borchers who was the lawful county clerk, nor to adjudge the effect of the mistake in Borchers ’ Christian name in his commission.

But under the cause of action stated in the plaintiff’s petition there was no question as to who was the lawful county clerk or who was the lawful custodian of the records of the county court. Plaintiff in his petition makes no claim to such official character, and has no right to assert it now, and therefore he has no right to say that in ordering him to be put out of the room the county court was assuming to decide between him and Borchers which was the lawful county clerk. Prom reading his petition one would never learn that the grievance of which he was complaining was that of the taking out of his possession the records of the county court or despoiling him of his official prerogatives. His complaint is that he was forcibly ejected from a room which he was lawfully occupying “in the peace of the State.” The word “office” is used, but in the connection used it signifies room or apartment; the language is “room or office in the northwest part of the court house.” There is no claim that he was lawfully or peaceably in possession of the records of the county court, nor is there any claim of damages for being forcibly dispossessed of such records. The action of the sheriff, therefore, under orders from the county court, in separating the plaintiff from the records of the county court was not a violation of that right which the plaintiff asserts in his petition.

On the trial it turned out that the thing really in dispute was not the right to occupy the room, but the right to hold the records; the occupation of the room was only incident to the right to hold the records. The room is significant under the facts of this case only as being the repository of the records. The holding of the roonl was the holding of the records and nothing more. Under the plaintiff’s own evidence if he had no right to hold the records he had no right to hold the room. Yet he sues for damages for dispossessing him of the room without asserting any claim to the right to hold the records. If he had intended to sue the sheriff and the judges for damages for forcibly dispossessing him of the official custody of the records belonging to him as county clerk he should in his petition have asserted a right to that office and tendered that issue.

The county court was entitled to the free and unconditional access to and use of its records and it was entitled to treat any one as a trespasser who, without official authority, obstructed its access to or use of the same. [Sparks v. Purdy, 11 Mo. 219.] And since the plaintiff’s own evidence shows that what the sheriff and the judges of the county court did was nothing more than what was necessary for them to do in order to take possession of their records they are not liable for even nominal damages.

The judgment is affirmed.

All concur.