I dissent to this opinion. The Springfield Court of Appeals was right in transferring the case to this court. Greene County was the real party in interest. [State ex rel. Carroll v. Cape Girardeau County Court, 109 Mo. l.c. 252; State ex rel. v. Bockelman, 240 S.W. l.c. 211.] In the latter case (Court in Banc) it was said: "But in this case the county of Benton is thereal party in interest. The question is whether such county pays its prosecuting attorney $1200 per annum, or $1800 per annum." In the Bockelman Case, the action was against the county court, and not the county. It was in this connection we said the county was the real party in interest. The purpose of the action there, as it is here, was to compel the county court to issue salary warrants, by which funds of the county would be taken. We had in mind the ruling in Carroll's Case when that statement was made. This suggestion by the Court in Banc (in Bockelman's Case) was not noted by Judge WHITE in Division No. 2, in Tadlock v. Mooneyham, 296 Mo. 421.
In the case at bar the plaintiff, by an action in mandamus, seeks to take from the treasury of Greene County a stated sum of money. The process of thus attacking the county and its funds is through an action against the county court — the members thereof. These judges have no personal interest in the money of the county. They are officially designated to act for the county and only have the interest of an officer of the law. The real interest in the money lies in the county itself. In such situation, I think the county is a party to the suit within the meaning of the Constitution.
Let us reason the situation for a moment. Suppose the relator here had sued the county direct for the identical money he seeks to get through mandamus. In such case the appeal would be to this court and not to the Court of Appeals, and yet the same fund is involved. *Page 302 The county is just as much the real party in the one case as in the other. Of course there are many instances where actions against a county court, or its members, are not actions against the county or effecting the county. The county court may be sued to compel the issuance of a license of some kind, where refusal had been made to issue the same. In the outcome of such case the county has no direct interest. An appeal in such case, absent constitutional questions, would go to the Court of Appeals. But in a case like this, where the judgment for relator amounts to a money judgment against the county, which is to be paid out of funds belonging to the county, the appeal in my judgment comes to this court, for the reason that the county is the real party in interest. Ragland, J., concurs in these views.