Cleveland Village School Dist. No. 118 v. Zion

• Decision Date: 18 December 1916
• Docket Number: No. 12195.,12195.
• Parties: CLEVELAND VILLAGE SCHOOL DIST. NO. 118 OF CASS COUNTY v. ZION.
• Court: Missouri Court of Appeals

190 S.W. 955

195 Mo. App. 299

CLEVELAND VILLAGE SCHOOL DIST. NO. 118 OF CASS COUNTY v. ZION.

No. 12195.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Appeal from Circuit Court, Cass County; B. G. Thurman, Judge.

Suit by the Cleveland Village School District No. 118 of Cass County, and its directors and treasurer, against Henry Zion, wherein the petition was amended by striking out all plaintiffs except the school district. From a judgment for plaintiff, defendant appeals. Judgment reversed.

W. L. P. Burney and D. C. Barnett, both of Harrisonville, for appellant. W. D. Summers, of Harrisonville, for respondent.

TRIMBLE, J.

This suit was brought, originally, by the Cleveland Village school district No. 118 of Cass county, and Brown, Laffoon, Edelen, Job, Noyes, and Corey, directors, and P. R. Brown, treasurer thereof, against defendant, Zion, to recover certain funds alleged to have come into his hands as township trustee and treasurer of Glen Wild school district, a common school district heretofore existing but disorganized in 1903 by the incorporation of the north two-thirds of its territory into the Cleveland Village school district and the south one-third of said territory into the West Line school district.

The petition was in two counts, the first of which, after alleging the official positions of all the persons above named, the existence of Glen Wild school district, and the later disorganization thereof by the incorporation of two-thirds of its territory into the Cleveland Village school district and the rest into the West Line district, further alleged that at the time of said disorganization said Zion, as said township trustee and treasurer, had in his hands funds belonging to said disorganized district amounting to the sum of $183.46. Said first count further alleged that, "under the statutes made and provided," the said funds in the hands of said Zion were to be divided to said districts according to the number of children of school age that were transferred to each of the districts that absorbed the territory of the disorganized district; that there were 25 children transferred to the Cleveland district and 7 to the West Line district, whereby the former became entitled to 25/32 of said funds and the latter to 7/32 thereof; and that the said Cleveland district was entitled to $143.46 and said West Line district to $40.21. (This, it will be observed, is 21 cents more than is alleged to be in defendant's hands.) Said first count, after alleging demand therefor and refusal to pay, prayed judgment with interest from the ____ day of April, 1908. The second count of the petition alleged that in a proceeding in the county court of Cass county, at the April term, 1908, wherein the Cleveland district was plaintiff and the West Line district and said Zion were defendants, a judgment was rendered finding that the treasurer of the Cleveland district was entitled to receive $143.46, and the custodian of the funds of the West Line district was entitled to receive $40.21, and ordering that said Zion honor warrants for the said amounts respectively due said districts; that said judgment in favor of plaintiff for $143.46 is a final judgment and remains unpaid; wherefore judgment is asked for said sum, etc.

Defendant herein offered a demurrer to the petition. Plaintiffs thereupon amended said petition by striking out all of the plaintiffs except the Cleveland Village school district. After this, the court upon consideration of the demurrer overruled it, and defendant elected to stand thereon. Thereupon the court heard plaintiff's evidence and found the issues for the plaintiff upon the first count of the petition and found that the defendant was indebted to plaintiff in the sum of $143.66 (which is 20 cents more than the petition asked), with 6 per cent. from April 30, 1908, making an aggregate of $207.58 for which judgment was rendered. Thereupon defendant appealed.

The judgment having been rendered on the first count of the petition, the second count need not be specially considered, and it would not have been mentioned except for the fact that it is necessary in order to understand the references herein to the order and judgment of the county court, and also because, from the recitals in the judgment herein appealed from, it seems that the circuit court accepted the county court judgment as fixing and determining the plaintiff's proportionate share of the fund in defendant's hands.

The main contention raised by the demurrer is that the circuit court is without jurisdiction to entertain this suit because the law has provided a method whereby the funds and property of the absorbed district may be divided between the new districts and that method should be followed. Section 10839, R. S. Mo. 1909, provides that, upon the formation of a new district, the districts affected shall...