City of Salisbury v. Nagel
| Decision Date | 02 October 1967 |
| Docket Number | No. 24599,24599 |
| Citation | 420 S.W.2d 37 |
| Parties | CITY OF SALISBURY, Missouri, a Municipal Corporation, Plaintiff-Respondent, v. Gene NAGEL et al., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Robert Devoy, Brookfield, James J. Wheeler, Keytesville, for appellants.
George S. Thompson, Salisbury, for respondent.
Plaintiff, City of Salisbury, a city of the forth class, brought this action pursuant to Section 71.015 V.A.M.S., the so-called Sawyers Act, seeking a declaratory judgment authorizing it to annex adjoining territory consisting of three small tracts aggregating approximately 131 acres. The cause was instituted as a class action under provisions of Section 507.070 V.A.M.S. against twenty defendants alleged to be fairly representative of all the inhabitants and landowners of the area sought to be annexed. Thereafter by leave of court two additional parties intervened as defendants. Upon trial the court found the issues generally in favor of plaintiff and made specific findings () 'that this is a class action and that the defendants named herein and the defendant interveners joined herein provide adequate representation of all that constitutes a class who will be affected by this action as provided by Section 507.070 VAMS.', and that 'the annexation of the above described areas is reasonable and necessary to the proper development of the City of Salisbury and that said City of Salisbury has the ability to furnish normal municipal services to the aforementioned annexed areas within a reasonable time;'. In conformity with those findings judgment was entered authorizing annexation of the three proposed areas. Defendants have appealed.
The appeal raises issues as to whether the defendants named and who intervened provided adequate representation of all members of a class affected by the action, whether the trial court should have stricken plaintiff's pleadings for failure to answer interrogatories, whether passage of the resolution for annexation was lawful, and whether the trial court's finding that the proposed annexation was reasonable and necessary to the proper development of the city is supported by the evidence. In determining these questions we must view the case upon both the law and the evidence, weigh the evidence, and render such judgment as the trial court ought to have given. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R.; City of Creve Coeur v. Huddleston et al., Mo.App., 405 S.W.2d 536.
As their first point defendants contend the trial court erred by including in its findings the following recital: 'On December 8, 1965, the day said cause was set for trial, there appeared before the court plaintiff represented by its attorney, George S. Thompson, and defendants Richard Gesling, Carl Freese, Gene Nagel, Charles F. Tadlock, Audra McClain, George Edward Williams, George T. Roling, Anna Grigsby, William Leber, Neil Davis and William Randolph, represented by their attorney, James J. Wheeler, and all other defendants were duly served or voluntarily entered their appearances but did not appear in person or by counsel and did not actively participate in the trial.' (Our italics.) Defendants insist that the quoted recital 'is not supported by the evidence or this record,' in that 'There is nothing in the record to show that any of the other defendants (those not specifically named), and certainly not any defendants representing a class, were either served or voluntarily entered their appearance.' Defendants are reminded that it is not the respondent's burden to show that the finding in question is supported by the record. To the contrary, it is presumed that the finding is correct. Under that presumption defendants, as appellants, have the burden of affirmatively establishing the alleged error. 3 Mo.Digest 1, Appeal and Error, k900--901. The transcript before us contains no entry or recital that is incorrectly reflected by or inconsistent with the trial court's finding. Consequently we rule that no error has been shown with respect thereto.
Defendants complain the court erred to their prejudice by refusing to strike plaintiff's pleading 'for failing to answer interrogatories.' The interrogatories in question are here quoted:
'29. State the total bank deposits in the City of Salisbury in the years of: (a) in 1900 (b) in 1910 (c) in 1920 (d) in 1930 (e) in 1940 (f) in 1950 (g) at the present time.
30. State the total saving deposits in the City of Salisbury in: (a) in 1900 (b) in 1910 (c) in 1920 (d) in 1930 (e) in 1940 (f) in 1950 (g) at the present time.
31. State the total number of bank clearings in: (a) in 1900 (b) in 1910 (c) in 1920 (d) in 1930 (e) in 1940 (f) in 1950 (g) at the present time.
34. State the total number of electricity users in: (a) 1920 (b) 1925 (c) 1930 (d) 1935 (e) 1940 (f) 1945 (g) 1950 (h) 1955 (i) the present time.
35. State the total number of water users in the years of: (a) 1920 (b) 1925 (c) 1930 (d) 1935 (e) 1940 (f) 1945 (g) 1950 (h) 1955 (i) at the present time.'
Plaintiff responded to the quoted interrogatories in the first instance by answers as follows:
'29. Information here sought not information peculiar to city and such information is as available to defendants as to plaintiff.
30. See 29 above.
31. See 29 above.
34. (a) unknown (b) unknown (c) unknown (d) unknown (e) unknown (f) unknown (g) unknown (h) unknown (i) unknown.
35. (a) unknown (b) unknown (c) unknown (d) unknown (e) unknown (f) unknown (g) unknown (h) unknown (i) unknown.'
Thereafter, on motion of interrogating defendants, the trial court ordered that plaintiff file more specific answers, pursuant to which plaintiff filed, on September 28, 1964, its 'Second Answers' which included the following:
'In answer to interrogatory No. 2. plaintiff says it does not know the answers to said questions a, b, c, d, e, f, and g.
'In answer to interrogatory number 30 plaintiff says that it does not know the answers to questions a, b, c, d, e, f and g.
'In answer to interrogatory number 31 plaintiff says that it does not know the answers to questions a, b, c, d, e, f, and g.
'In answer to interrogatory number 34 plaintiff states that it does not know the answers to questions a, b, c, d, e, f, g, h, and i. Further answering plaintiff states that at the present time the Board of Public Works mails out 980 statements to electricity users.
'In answer to interrogatory number 35 plaintiff states that it does not know the answers to paragraphs a, b, c, d, e, f, g, h and i. Further answering plaintiff states that the Board of Public Works sends statements to approximately 750 water customers.'
Thereafter defendants filed and the court overruled their motion to strik plaintiff's pleadings on the ground that the answers plaintiff had filed to the interrogatories submitted to it, inclusive of those numbered 29, 30, 31, 34 and 35, did not comply with the rule which requires full and complete answers to interrogatories.
In argument of this point defendants have virtually abandoned complaints directed against the sufficiency of plaintiff's answer to interrogatories numbered 29, 30 and 31. They suggest no reason why the trial court should have taken punitive action against plaintiff because its answers to those questions went no further than to disclaim any knowledge relative to the amount of bank deposits, savings deposits and bank clearings in Salisbury at the 'present time' or at various times during the previous sixty-five years. For that matter, it is clear to us that the trial court would have exceeded its authority in requiring additional answers or striking plaintiff's pleadings on the ground that the answers were insufficient. Civil Rule 56.01 does not require a party to furnish information upon interrogation other than such as is 'available' to him. The information necessary to answer Interrogatories Nos. 29, 30 and 31 'more fully,' (or even to any extent at all) was not reasonably available to plaintiff. The law does not require or permit plaintiff city to perform the ultra vires function of compiling and preserving statistical financial data of the kind about which defendants inquire. Further answers could have been made only on the basis of information obtained by interviewing the officers and employees of depository banks and other financial institutions which are strangers to this suit, or by making an investigation into their books and records. 'The court can not properly require a party to conduct such an investigation and any attempt to do so is in excess of the jurisdiction of such court.' State ex rel. Mid-America Pipeline Company v. Rooney, Mo.App., 399 S.W.2d 225.
Nor is it our opinion that any portion of plaintiff's answers to interrogatories 34 and 35 constitutes 'refusal of a party to answer any interrogatory' as basis for an order of court striking plaintiff's pleadings. Although, as owner to municipal electric and water systems, the city could be expected to have reasonably current records showing the number of its own electric power and water consumers, it may not be assumed, or reasonably expected, that when the city filed answers to the interrogatories in 1964 there were any records still in its possession or information was available to it to show the number of such customers during the years from 1920 through 1950. The city's answers disclose the total number of electricity and water patrons 'at the present time,' i.e., as of September 28, 1964. In the same answers it is stated, under oath, that the city does not know the total number of electricity and water users in 1920, 1930, 1935, 1940, 1945, 1950 and 1955. Defendants do not attack the veracity of these verified answers. We therefore accept them as representations of the truth conclusively establishing that the information sought was...
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