City of Aurora v. Coleman, 9190

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: TITUS; STONE, HOGAN and BILLINGS, JJ., and DOUGLAS W. GREENE
• Citation: 490 S.W.2d 668
• Parties: The CITY OF AURORA, Missouri, a municipal corporation, Plaintiff-Respondent, v. Miller COLEMAN et al., Defendants-Appellants, and John W. Jenkins et al., Defendants.
• Docket Number: No. 9190,9190
• Decision Date: 25 January 1973

Page 668

490 S.W.2d 668 The CITY OF AURORA, Missouri, a municipal corporation,
Plaintiff-Respondent,
v.
Miller COLEMAN et al., Defendants-Appellants,
and
John W. Jenkins et al., Defendants. No. 9190. Missouri Court of Appeals, Springfield District. Jan. 25, 1973.

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

Page 669

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...