City of Aurora v. Coleman, 9190

Citation490 S.W.2d 668
Decision Date25 January 1973
Docket NumberNo. 9190,9190
PartiesThe CITY OF AURORA, Missouri, a municipal corporation, Plaintiff-Respondent, v. Miller COLEMAN et al., Defendants-Appellants, and John W. Jenkins et al., Defendants.
CourtCourt of Appeal of Missouri (US)

Moore, Pettit & Meyer, Aurora, for plaintiff-respondent.

Emory Melton, Cassville, Edward V. Sweeney, Monett, for defendants-appellants.

TITUS, Chief Judge.

Pursuant to the 'Sawyers Act' (§ 71.015) 1, and admittedly to avoid the ruling in City of Bourbon v. Miller, Mo. (banc), 420 S.W.2d 296, 301(5), the city council of Aurora adopted two separate resolutions--one to annex 515 acres lying south of the present city limits, the other to annex 150 acres situate at the northwest corner of the existing municipal boundaries. Thereafter, the city instituted this class action (Rule 52.08(a); § 507.070, subd. 1) in two counts against certain alleged inhabitants of the unincorporated areas praying for a declaratory judgment authorizing such annexations. Rule 87; Chapter 527. Following trial, the Circuit Court of Lawrence County entered judgment permitting the city to annex the areas 'described in Counts I and II of Plaintiff's Petition, subject to the will of the voters.' The defendants who appeared and were represented in the matter obtained no succor from their post-trial motions and appealed.

Husbands and wives named as parties defendants in Count I (the south area) were John and Helen Jenkins, M. L. and Jean McGown, Miller and Frances Coleman, and Charles and Helen Stark; Jeanne L. McKenzie was also designated as a defendant. Mr. and Mrs. Jenkins and Mr. and Mrs. McGown did not plead or otherwise appear in the case. Defendants named in Count II (the northwest area) were John Reidle and Rose, his wife, and Herbert H. Ragain and Julia, his wife, none of whom pleaded or appeared. Each count of plaintiff's petition averred the defendants named were 'all inhabitants of and property owners in the area sought to be annexed (and) said defendants will fairly ensure adequate representation of all the inhabitants and property owners of the area . . . and their interests are identical with the interests of all the inhabitants and property owners of the area.' Defendants Coleman, Stark and McKenzie moved the court to dismiss the petition, inter alia, for the reason that 'the defendants chosen are not truly representative of the class against whom this cause of action is filed, and that the named defendants do not fairly ensure adequate representation of all members of the class against whom this suit is brought.' When this motion was overruled, defendants answered specifically denying each and every allegation contained in all paragraphs of both petition counts. Defendants' after-trial motion to set aside the judgment and enter judgment for defendants or for a new trial, repeated the asseverations stated in their motion to dismiss and, as additional grounds for judgment or a new trial, stated these reasons: '9. Because plaintiff offered no evidence on and failed to prove facts showing that the defendants specifically named and served with process were fairly chosen and adequately and fairly represented the whole class of inhabitants and property owners in the area sought to be annexed. Plaintiff, by failing to prove such facts, failed to establish a prima facie case and failed to present sufficient evidence to justify the decree and judgment in plaintiff's favor. 10. Because Plaintiff having failed to establish facts referred to in the preceding paragraph, the Court did not and could not make a finding that the named defendants fairly and adequately insured representation of the whole class described in the preceding paragraph, which finding is mandatory to support a decree for the plaintiff herein.' 2 Continuing to preserve this complaint, the first point relied on in defendants' brief on appeal is that the trial court 'erred in rendering judgment for the plaintiff because the City did not offer any evidence on the point of proving that the defendants specifically named and served by process had been fairly chosen and adequately represented the whole class.'

At the time this action was filed, tried and determined by the trial court, Rule 52.09(a) provided: 'Whenever an action is instituted . . . against one or more defendants as representative or representatives of a class, the petition shall allege such facts as shall show that . . . defendants specifically named and served with process have been fairly chosen and adequately and fairly represent the whole class. The plaintiff shall be required to prove such allegations, unless all of the members of the class have entered their appearance, and it shall not be sufficient to prove such facts by the admission or admissions of the defendants who have entered their appearance.' 3 (Our emphasis).

None of the answering defendants testified. John Jenkins, called as a witness for plaintiff, was not identified as being one of the defaulting defendants named in Count I of the petition; if he was, it is doubtful he qualified as an inhabitant of the south unincorporated area because, so he said, he resided in...

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2 cases
  • City of O'Fallon v. Bethman
    • United States
    • Missouri Court of Appeals
    • June 13, 1978
    ...protect the interests of the class. These requirements are mandatory and not merely technical or directory. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973); City of Salisbury v. Nagel, 420 S.W.2d 37, 47 Respondent contends that the city's designation of the representative parti......
  • City of Des Peres v. Stapleton, s. 35668
    • United States
    • Missouri Court of Appeals
    • May 27, 1975
    ...class' and that the 'plaintiff shall be required to prove such allegations . . .' These provisions are mandatory. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973). Their purpose is to insure adequacy of representation for those defendants not named and to prevent collusion. Shee......

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