Barrett v. Stoddard County

• Decision Date: 15 February 1916
• Docket Number: No. 1581.,1581.
• Citation: 183 S.W. 644
• Parties: BARRETT et al. v. STODDARD COUNTY et al.
• Court: Missouri Court of Appeals

183 S.W. 644

BARRETT et al. v. STODDARD COUNTY et al.

No. 1581.

Springfield Court of Appeals. Missouri.

February 15, 1916.

Rehearing Denied March 11, 1916.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by John A. Barrett and others against Stoddard County and others. From an order overruling a motion for a new trial on a motion to assess damages on an injunction bond, plaintiffs appeal. Remanded, with directions.

Thomas F. Lane and Giboney Houck, both of Cape Girardeau, and J. L. Fort, of Dexter, for appellants. Mozley & Woody and Wammack & Welborn, of Bloomfield, for respondents.

FARRINGTON, J.

The opinion in this case might well be termed Revelations, in that it undertakes to write the final chapter of a series of events involving litigation which commenced on May 6, 1907. On that date the county court of Stoddard county was receiving bids for the custody of the county funds. The Bank of Essex made a bid, as did the City Bank of Bloomfield, both agreeing to pay the county the same rate of interest. On the following day the county court awarded the contract to the Bank of Essex, which bank then executed the bond required of a depositary. The whole record is convincing beyond doubt that this did not suit the City Bank of Bloomfield and other citizens and residents of Stoddard county. Consequently, in the month of July, 1907, there was instituted a proceeding seeking to enjoin the action of the county court in its award of the county funds as aforesaid. That petition for an injunction was entitled John A. Barrett, together with over 50 resident taxpaying citizens of Stoddard county, and the City Bank of Bloomfield, against the following defendants: Stoddard county, Mo., D. C. Bollinger, J. H. Harper, T. W. Boyd, judges composing the county court of Stoddard county, Mo., J. A. Barham, county treasurer of Stoddard county, Mo., and the Bank of Essex, a corporation of Essex, Stoddard county, Mo. This petition charged bad faith and illegality in the contract made between Stoddard county and the Bank of Essex, and sought to restrain the defendants therein from carrying out the terms of the contract, and also to require the defendants to place the county funds with the City Bank of Bloomfield. A temporary injunction was granted by the circuit judge of Stoddard county restraining the defendants from carrying out the contract, and requiring that the county funds be placed with the City Bank of Bloomfield. The injunction bond given in that proceeding was signed by the City Bank of Bloomfield and certain sureties (9 out of the 12 being plaintiffs in the original suit), who are to all intents and purposes the defendants in the proceeding now before us. The bond was double-barreled, in that it stood good for the City Bank of Bloomfield carrying out its undertaking, and also agreed that the bondsmen "shall pay to said Bank of Essex whatever damage it may sustain by reason of the injunction hereinbefore described and awarded in the suit above named, if it be finally decided that said injunction ought not to have been granted, then this obligation to be void; otherwise to remain in full force and effect." That cause was taken on change of venue to Howell county and tried; the decision being that the temporary injunction be dissolved. The plaintiffs in the case took an appeal to the Supreme Court, where it was disposed of in an opinion affirming the judgment dissolving the injunction and finding that there was no illegality or bad faith in the contract made by the county court of Stoddard county awarding the county funds to the Bank of Essex. Barrett et al. v. Stoddard County, 246 Mo. 501, 152 S. W. 43.

After this disposition of the principal case by the Supreme Court the defendants therein filed a motion in the circuit court of Howell county to assess damages on the temporary injunction bond placing the damages to the Bank of Essex: (1) At $10,000 by reason of it having been deprived of the use of $175,000 for a period of over two years because of the issuance of the temporary injunction; (2) at $1,100 as expense incurred in employing counsel; and (3) at $500 as the expenses of the officers and agents of the bank in attending court, and placing the damages to D. C. Bollinger and J. H. Harper at $100 each as expenses incurred and loss of time in attending court and in the necessary work of defending the action. This motion to assess damages was entitled J. A. Barrett et al. v. Stoddard County et al., and in a trial before the circuit judge and a jury in Howell county resulted in a verdict for the parties filing the motion in the sum of $10,000. Before the motion for a new trial was passed upon by Hon. W. N. Evans, the circuit judge of Howell county, Bollinger and Harper entered a remittitur of $100 each, and the Bank of Essex entered a remittitur of $2,800. The judgment was not written up for $7,000, but remained on the records as for $10,000. The appeal before us is from the order overruling the motion for new trial on the motion to assess damages on the injunction bond. The injunction bond recites that the City Bank of Bloomfield obtained a temporary injunction restraining the defendants "in a certain suit now pending in the circuit court of said Stoddard county, in which J. A. Barrett and others are plaintiffs and D. C. Bollinger and others [italics are ours] are defendants; the object and purpose of which suit is to cancel and annul a contract entered into by and between the county court of said county of Stoddard acting for and on behalf of said county, and said Bank of Essex," by virtue of which contract the said county court awarded the county funds to the Bank of Essex as depositary for 2 years and 65 days.

After the institution of the original suit the Bank of Essex consolidated with another banking corporation in the county, the Farmers' Bank of Essex, and all of the stock of the Bank of Essex was surrendered and the two banks put together. The City Bank of Bloomfield, as appears by the evidence, failed with a deficit of something like $100,000.

The bondsmen now complain that the judgment rendered against them is erroneous because the motion to assess damages filed by the defendants in the original action was captioned J. A. Barrett and Others, Plaintiffs, v. Stoddard County and Others, Defendants, whereas they recover in said proceeding on a bond reciting that it is given in a proceeding which in every detail showed it was given in the original case, but in a recital thereof appears to be given in a case pending between J. A. Barrett and Others, Plaintiffs, v. D. C. Bollinger and Others, Defendants. As hereinbefore shown, Bollinger was the second defendant named in the original proceeding asking for injunctive relief. We rule this contention against the appellants, and hold that merely shifting the name of the second defendant to first place in the description of the bond did not make the judgment void. The contention is frivolous, and needs no further exploitation in this opinion than to set forth the facts.

Appellants further contended in their original brief that the judgment is erroneous because the City Bank of Bloomfield was not and is not a party to the original proceeding, and set forth an alleged complete transcript of the proceedings of the circuit court of Howell county in which it was not shown that the City Bank of Bloomfield was a party. However, when respondents bring forward an additional abstract of the record, which is not questioned, and which clearly shows that said bank was a party plaintiff, and in their brief call attention to stipulations signed and filed in the cause reciting that the City Bank of Bloomfield was a party plaintiff, the appellants filed a written admission in this court that the City Bank of Bloomfield was a party plaintiff. The admission disposes of this point.

It is next insisted by appellants that before the motion to assess damages was filed the Bank of Essex had been dissolved, and was therefore incapable of maintaining a suit or a motion in this litigation. There is set out in the brief filed by appellants what purports to be a certificate of the bank examiner, and the affidavit of a man named "J. P. Larue, President," declaring that by unanimous vote of the stockholders the Bank of Essex was dissolved, and this purports to have been filed in the office of the secretary of state. The brief states that it also appears that there was a dissolution by a vote of the stockholders. From what this appears is not disclosed by the record before us as...