The State ex rel. Kern v. Stone
| Decision Date | 20 December 1916 |
| Parties | THE STATE ex rel. J. F. KERN, Treasurer of Drainage District Number One, Appellant, v. JOHN STONE, Treasurer of Bates County |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. Charles A. Calvird, Judge.
Affirmed.
Thomas J. Smith for appellant.
(1) The plea of the defendant in his return setting up the alleged refusal of the drainage district to become a party defendant to the action brought in the United States District Court by Wills & Sons against Bates County is inconsistent with the further averments in the return that that court held exclusive jurisdiction of all matters involved in the present proceeding, and that that court had held the drainage district was not a proper party defendant. The former plea referred to, should, therefore, be disregarded. Cable v McDaniel, 33 Mo. 363; Adams v. Trigg, 37 Mo 141; Darrett v. Donnelly, 38 Mo. 492; State ex rel. v. Delmar Jockey Club, 200 Mo. 65; Dickey v Potter, 203 Mo. 20; Price v. Mining Co., 83 Mo.App. 474; Bank v. Stone, 93 Mo.App. 294. (2) Wills & Sons, as plaintiff in that action, had a right to proceed against any one party which they conceived to be liable, and in an action at law no outside party could force itself in as a party defendant. R. S. 1909, sec. 1734; Badgley v. St. Louis, 149 Mo. 122; Noble v. Kansas City, 95 Mo.App. 167; Simpson v. Schulte, 21 Mo.App. 639. (3) The admissions by defendant in the return to the writ that the funds in dispute are the proceeds of the second bond issue are inconsistent with the claim made in the return that Wills & Sons may set up some claim to the fund in dispute, since it is specifically admitted in the return that the work done by these contractors was to be paid out of the proceeds of the first bond sale. Being inconsistent, as stated, this plea should be disregarded. See authorities under proposition one. (4) Wills & Sons' claim being payable out of a specific fund only, and there being no provision in the statute for the replenishing of this fund when the same was properly exhausted, they were without remedy. R. S. 1909, secs. 5596, 5598, 5599, 5603; Pettis County v. Kingsbury, 17 Mo. 479; Kingsbury v. Pettis County, 48 Mo. 207; Campbell v. Polk County, 49 Mo. 214; State ex rel. v. Macon County, 68 Mo. 37; Cook v. Putnam County, 70 Mo. 592; Cook v. Putnam County, 81 Mo. 591; Moody v. Cass County, 74 Mo. 307; Moody v. Cass County, 85 Mo. 477; Wilson v. Knox County, 132 Mo. 401; McGowen v. Ford County, 107 Cal. 177; Peake v. New Orleans, 139 U.S. 342. (5) Even if the fund in question might eventually be held liable for any claim of Wills & Sons, they would not be proper parties defendant in this proceeding. State ex rel. v. Burkhardt, 59 Mo. 75; State ex rel. v. Fraker, 166 Mo. 142; State ex rel. v. Coleman, 183 Mo.App. 365. (6) Even if Wills & Sons might be held finally to have a claim against the fund in question, the relator was entitled to handle and administer this fund. Laws 1913, sec. 56, p. 264. (7) The plea of part payment and an alleged agreement by the board of supervisors, even if it had been proven, would constitute no defense to the action, because such an agreement was without consideration, the relator being entitled to the whole fund. Helling v. United Order of Honor, 29 Mo.App. 309; Griffith v. Creight, 61 Mo.App. 1; Winters v. Railroad, 73 Mo.App. 173; Brewery Co. v. Schowenlau, 32 Mo.App. 357; Reinhold v. Kerrigan, 85 Mo.App. 256; Banking Co. v. Baker, 99 Mo.App. 660; Whitmore v. Cranch, 150 Mo. 671.
DeWitt C. Chastain for respondent.
(1) The county treasurer has the right to this fund until the Wills case is settled under the agreement. The consideration is sufficient. Rinehart v. Bills, 82 Mo. 534; Nelson v. Diffenderffer, 178 Mo.App. 48. The evidence justifies the conclusion that at the time the district was reorganized there was an agreement that $ 40,000 of the district funds should be turned over and the $ 29,000 held by the county as indemnity. At this time there was a suit pending by Wills & Sons for $ 50,000 against the county. The court has held that the county was the proper party and that the district was not. Wills v. Bates Co., 190 F. 522. (2) The writ of mandamus is not issued in doubtful case, but must be based upon a clear right. State ex rel. v. Reynolds, 243 Mo. 715; State ex rel. v. Thomas, 245 Mo. 65; State ex rel. v. Gas Co., 254 Mo. 515. In this case there are several things that stand in the way of a clear right in relator: First: A judgment stands against the county and it is ordered satisfied out of any funds belonging to the district. It is contended that this fund is not applicable to that judgment. No authority to that effect is cited. There is but one district and Wills & Sons' judgment is for doing the original work. The question of whether this money is available cannot be decided so as to bind Wills & Sons in an action to which they are not parties. Second: Relator contends that the original fund being exhausted, and being no provision for replenishing the fund, that Wills & Sons are without a remedy and not entitled to a judgment -- but such a contention was ruled adversely to them by the Federal court. Third: It is claimed that even though Wills & Sons were entitled to the fund that the relator was entitled to administer it but note relator testifies that if he gets the fund he will spend it on the ditch. This would be an improper use until the rights of Wills & Sons are determined. Mandamus is a discretionary writ and this is not a proper case for it. Fourth: The judgment against Bates County being in the Federal court that court would have jurisdiction to determine what was applicable to the payment thereof. Bank v. Hughes, 152 F. 414; Preston v. Calloway, 183 F. 19; Babcock v. Millard, 2 F. Cas. No. 699; 4 F. Stat. 298. Fifth: If this writ is ordered, Wills & Sons not being parties will not be bound and if subsequently the fund in question is held to be subject to their claim, the respondent will be liable on his bond. To pay this money out after judgment rendered even upon a writ from this court would be at the peril of the respondent.
Woodson, J., not sitting.
This is a mandamus proceeding, brought by relator as treasurer of Drainage District Number One, in Bates County, Missouri, against respondent, as the treasurer of said county, to compel the latter to turn over to relator, as treasurer aforesaid, $ 29,016.16, held by him under an order of the county court of said county, together with $ 1700 alleged to have been received by said county as interest, on account of the proceeds of sale of drainage bonds.
The record before us is very meagre and unsatisfactory, but as the proceedings in the Federal Court by Wills & Sons v. Bates County, prior to the rendition of the last judgment in said court, are reported in full, in the two cases of Wills v. Bates County, 170 F. 812, and Bates County v. Wills, 190 F. 522, we will set out some of the facts more in detail, as shown in said reports, than they appear in the record before us, in order that we may be fully advised as to the merits of the present controversy.
Certain citizens of Bates County aforesaid, organized Drainage District Number One, under article 4, chapter 41, Revised Statutes 1909, known as the "County Court Law." The county court of said county, acting for the drainage district, let a contract, through Bell, the engineer, to Timothy Foohey & Sons, for the construction of a ditch in said county, divided into three sections. The contract and bond given by the contractors were subsequently approved by the county court. On the day of the execution of said contract, Foohey & Sons assigned and transferred to A. V. Wills & Sons the portion of the contract relating to section numbered 3. Wills & Sons obligated themselves to perform the contract relative to section 3, and the work which was done upon said last named section was performed by them. Separate estimates were made by the engineer of work done by Wills & Sons, as the same progressed, to August, 1908, and ninety per cent of the total amount was paid by the county court, ten per cent being reserved.
During the progress of the work and on the 6th day of August, 1908, the records of the county court show that Wills & Sons stated to said court that they found in the land required to be excavated a large amount of stone, which was not covered by the terms of their contract, and that they could not remove the same under said agreement. It was finally agreed between Wills & Sons and the county court, that the work should be continued as formerly, by Wills & Sons, without prejudice as to their right to refuse to move the stone; and without prejudice as to the right of the county to contest the claim of Wills & Sons, in respect to said matter. Thereafter, Wills & Sons removed said material from the ditch, except the stone, which they insisted they were not required to remove; the county court insisting that they were required, under the contract, to remove same.
On April 3, 1909, Wills & Sons brought suit in the Federal Court against Bates County and Drainage District Number One, 190 F. 526, to recover $ 58,000, which they claimed to be due them for said work. Mr. Smith, who is counsel for relator in this action, appeared in behalf of Bates County and said district, and filed separate demurrers to plaintiff's petition, in behalf of said defendants. Judge Philips, in disposing of the separate demurrer of the drainage district, in 170 F. 812, said:
...
To continue reading
Request your trial