Western Tie & Timber Co. v. Pulliam

• Citation: 139 S.W. 144,237 Mo. 1
• Parties: WESTERN TIE & TIMBER CO. v. PULLIAM et al.
• Decision Date: 01 July 1911
• Court: United States State Supreme Court of Missouri

139 S.W. 144

237 Mo. 1

WESTERN TIE & TIMBER CO. v. PULLIAM et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1911.

Rehearing Denied July 15, 1911.

1. DRAINS (§ 40) — RESTRAINING CONSTRUCTION.

A party who contested drainage proceedings on the merits and suffered defeat was bound by the decision on questions therein settled in a further suit in equity to enjoin proceedings under the judgment.

2. COURTS (§ 117) — RECORDS — PRESUMPTIONS.

Where the county court in drainage proceedings found as a fact that due notice was given, and its record so showed in a suit to enjoin proceedings under the judgment, it would be presumed that the record was true.

3. DRAINS (§ 40) — ISSUANCE OF BONDS — COLLATERAL ATTACK.

In a suit to enjoin a proceeding under a judgment rendered in drainage proceedings, the plaintiff alleged that the drainage proceedings had been had under an amended petition which failed to ask for an issue of bonds. The suit in equity was filed August 26, 1910. It appeared that at the February term, 1910, the county court directed the engineer to let the contract for construction of a drain, and ordered an issue of bonds, and further ordered that the bonds be sold at public auction; that on May 3, 1910, the contract for the construction of a ditch was let, and the bond of the contractor doing the work approved. On May 6th the court made an order directing the sale of the bonds, and a subsequent order approved an offer for the bonds under this sale. The order was not set out in the abstract. Held, that the court would assume that the bonds had been sold and delivered, and was precluded in the injunction suit from considering whether or not the bonds were valid.

Appeal from Circuit Court, Ripley County; Jesse C. Sheppard, Judge.

Appeal by the Western Tie & Timber Company against John A. Pulliam and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Suit by the Western Tie & Timber Company, as plaintiff, to enjoin the defendants, judges of the county court of Ripley county, from proceeding with the construction of a drain or artificial water course in Ripley county, and also to enjoin the issuing of certain bonds for the construction of the same, and to prevent assessments and levies against the lands of the plaintiff to pay for the construction of such drain, or to meet or retire bonds issued to pay for same.

The original petition was filed April 18, 1910, in the circuit court of Ripley county. An amended petition was filed August 26, 1910. Such amended petition charges that the plaintiff is an Arkansas corporation and the owner of a large amount of lands in said county; that at the November term, 1902, of the county court of Ripley county, there was presented a petition praying for the establishment of a drain or artificial water course, which petition described the proposed location and route of such drain or ditch, having an approximate length of about nine miles, and prayed for the issuing of bonds to pay for same; that on the 29th day of December, 1902, there was filed in said proceeding an amended petition which abandoned the prayer of the original petition for the issuance of bonds; that on the 6th day of February, 1903, on the pretended authority of said petition, the county court ordered the establishment of a drainage district to be known as Naylor drainage district No. 1, whose beginning point and terminus were other and different from those mentioned in the original petition, but following the same general course and of the same length; that said county court by its order establishing said drainage district attempted to provide that bonds should be issued and sold to pay for the construction of said drain; and thereafter, on August 1, 1904, the county court entered its pretended judgment, including plaintiff's lands in said drainage district, and assessing benefits against said lands in sums exceeding in the aggregate $10,000. The petition then proceeds as follows: "And the plaintiff alleges that said pretended judgments of said county court, establishing said drainage district and providing for the construction of said drain, and making the assessments aforesaid, are void for the reason that the petition filed with the county court did not pray for, or authorize, the establishment of the drain which said county court actually attempted to establish as aforesaid; and also because said county court, when it entered said pretended judgments establishing said drainage district, providing for the construction of said drain, and making said assessment, was without jurisdiction of the landowners whose lands were to be taken for the location of said drain or water course, as well as the landowners whose lands were to be assessed for said improvements. And the plaintiff further avers that the terminus of said drain as ordered and directed to be established by said court by said pretended orders and judgments is without a natural outlet for the water, and that no artificial outlet is provided, that plaintiff's lands lie near the terminus, and are of a lower level than other lands through which it is proposed to construct said drain, and, instead of being benefited by said drain, will be overflowed and damaged and rendered of less value by its construction, and the plaintiff alleges that no compensation has been made or provided in behalf of the plaintiff for such damage to its lands. And plaintiff further avers that other lands included within said drainage district will be greatly benefited and the value thereof largely enhanced by the construction of said drain, but plaintiff says that plaintiff's said lands, hereinabove described, although they will be damaged by the construction of said drain and will receive no benefit whatever therefrom, are assessed for benefits under the pretended judgment of August 1, 1904, in the same amount per acre as are assessed against said other lands so included in said drainage district, and which will be benefited and greatly enhanced in value by the construction of said drain. The plaintiff alleges that the defendants now propose to execute said void judgments, to let contracts for the construction of said drain or water course, and to cause the same to be constructed, to issue and sell bonds to secure funds to pay for the same, and to make levies and assessments against the lands of the plaintiff to pay for the construction of said drain and to pay and redeem said bonds, and will proceed to do all this unless restrained and enjoined from so doing. The plaintiff alleges that under the statutes regulating appeals from the county court in drainage matters it is without remedy by appeal from these pretended orders and judgments of the county court aforesaid, and has no remedy with reference thereto save only by the interposition of a court of equity. Wherefore the plaintiff prays that the defendants herein, as judges of the county court aforesaid, and their successors in office, be restrained and enjoined from executing, or attempting to execute, said pretended orders and judgments; from contracting or attempting to contract, for the construction of said drain or artificial water course from making, issuing, or disposing of, or attempting to make, issue, or dispose of bonds for the construction of the same; and from making, or attempting to make, any assessments or levies against the lands of the plaintiff to pay for the construction of said drain of water course, or to meet or retire bonds issued to pay for the same; and for such other and further relief as to the court may seem meet and proper in the premises.' The answer of defendants, filed December 14 1910 sets out at great length and specifically, all the proceedings in the county court, the circuit court and this court concerning the establishment of the drainage district, together with a general denial of every allegation in plaintiff's petition not specifically admitted.

The facts set up in the answer substantially appear in the opinion of the court in the case of Tie & Timber Company v. Drainage Co., 226 Mo. 420, 126 S. W. 499. Owing to their great length, the facts will not be repeated here in detail, but reference can be had to the above-mentioned opinion for the detailed facts. It is sufficient to say that the facts set up in defendants' answer show that proceedings were had under the statute in the county court to establish this drainage district. A petition was filed by property owners, as provided by law, viewers were appointed, whose report recommended a change in the beginning and terminus of the proposed ditch, and also a change in its route whereupon an amended petition was filed by the property owners conforming to the route as changed by the viewers. New notice was given as upon an original proceeding. An order was made by the court confirming the report of the viewers; notice by publication given to certain nonresident landowners; summonses issued to resident landowners, as the law at that time required to be done. That the cause was continued from time to time until the 1st day of August, 1904, when the plaintiff Western Tie & Timber Company appeared in the county court and filed exceptions which were heard and overruled; that an appeal was taken by plaintiff to the circuit court, where the cause was heard de novo, and decided adversely to plaintiff. Then an appeal to this court, resulting in said opinion of this court, where the judgments of the county and circuit courts were affirmed. The answer further alleges that every issue raised in this case has been litigated and determined adversely to plaintiff in the former case above referred to, and that such former decision is res adjudicata. The answer further alleges that all of the orders and decisions of the county court were in strict conformity to law; that said county court in May, 1910, after the affirmance by the Supreme Court of the proceedings in the county court, let the contract for the construction...