Dearmont v. Mount City

• Decision Date: 07 December 1925
• Docket Number: No. 15313,15313
• Citation: 278 S.W. 802
• Parties: DEARMONT v. MOUND CITY
• Court: Missouri Court of Appeals

278 S.W. 802

DEARMONT v. MOUND CITY

No. 15313

Kansas City Court of Appeals. Missouri.

December 7, 1925.

Rehearing Denied January 11, 1926.

Appeal from Circuit Court, Holt County; Guy B. Park, Judge.

"Not to be officially reported."

Action by Jonas B. Dearmont against the City of Mound City. Judgment for defendant, and plaintiff appeals. Reversed.

Frank Petree, of Oregon, Mo., and Jonas B. Dearmont, of Mound City, for appellant.

Tibbels & Bridgeman, of Mound City, for respondent.

BLAND, J.

This is an appeal from the action of the court in assessing damages on an injunction bond and rendering judgment therefor in the sum of $1,000 in favor of the city and against the principals and sureties. The suit was originally brought to restrain the city from awarding the contract for paving Nebraska street in defendant city, and from changing the grade of said street. A temporary injunction was issued. An injunction bond was executed by the defendant as principal with W. F. Vance and S. E. Proud as sureties. The only damages assessed were the expenses it was claimed were incurred by the city by reason of having employed special counsel to assist the regular city attorney in representing the city in the injunction suit. The city has not yet paid for the services of said special counsel.

It is claimed that a motion or resolution was adopted on June 7, 1920, by the board of aldermen of defendant city employing Mr. O'Fallon to assist the city in defending the injunction suit. No ordinance was passed employing Mr. O'Fallon, and the city clerk failed to record the resolution, if there was one, adopted by the board of aldermen, so on February 4, 1921, the board passed a resolution ordering the city clerk to amend his minutes to show such employment, which was accordingly done. O'Fallon assisted in the defense `of the injunction suit, and the evidence shows his services were of the reasonable value of $1,000.

The statute, section 8411, R. S. 1919, provides that—

"The mayor, with the consent and approval of the majority of the members of the board of aldermen, shall have power to appoint a treasurer," etc. "The mayor and board of aldermen may, by ordinance, employ special counsel to represent the city, * * * and pay reasonable compensation therefor."

No ordinance was passed employing Mr. O'Fallon or any one else to assist the city in the matter of the injunction suit, and his employment could not have been effected through a resolution. 19 R. C. L. p. 895; 28 Cyc. 379; sections 8415 and 8467, R. S. 1919. In addition to this, there is no evidence of an adoption of a resolution on the part of the city. It is not claimed that the board of aldermen a year and a half after the alleged adoption of the resolution, and subsequent to the rendition of the services, had power to correct or provide a record for the adoption of the motion so as to show that it was passed.

However, it is insisted by the defendant that as the city has received and accepted the benefit of the services of the special counsel, it is estopped to urge that it is not indebted to him, and is therefore liable to him for his services. There is no merit in this contention. It is well settled that where there is no ordinance or the ordinance is void, there can be no ratification or estoppel in a case of this kind. Baker Mfg. Co. v. City of Richmond (Mo. App.) 198 S. W. 1128; Crutchfield v. City of Warrensburg, 30 Mo. App. 456; Likes v. City...