Diekroeger v. Jones

• Decision Date: 16 December 1940
• Docket Number: No. 37080.,37080.
• Citation: 145 S.W.2d 435
• Parties: DIEKROEGER v. JONES et al.
• Court: Missouri Supreme Court

145 S.W.2d 435

DIEKROEGER v. JONES et al.

No. 37080.

Supreme Court of Missouri, Division No. 1.

December 16, 1940.

Appeal from Circuit Court, Nodaway County; Ellis Beavers, Judge.

Action to collect bonds by C. W. Diekroeger against W. W. Jones and another, as individuals, and as landowners representing a class of landowners in the Nodaway Drainage District No. 2 in Nodaway County, Mo., and as surviving members of the last board of supervisors of such district. From a judgment for the plaintiff, the defendant appeals.

Case transferred to the Kansas City Court of Appeals.

A. F. Harvey, of Maryville, for appellants Jones and Staples.

Livengood & Weightman, of Maryville, for respondent.

GANTT, Judge.

Action to collect bonds issued by the Nodaway Drainage District #2 of Nodaway County. The bonds and interest amount to less than $3,000. Defendants are the survivors of the last board of supervisors of the district. It was incorporated in 1909. Its corporate existence expired in 1934. Plaintiff seeks to compel the defendants, as de facto officers, to levy a tax on the land within the former district to provide funds for the payment of the bonds. Defendants filed a demurrer in which they alleged that "any right of action as alleged in plaintiff's petition is and would be in violation of the fourteenth amendment to the constitution of the United States, the fifteenth amendment to the constitution of the United States, in that it would deprive the owners of land situated in what was heretofore the Nodaway Drainage District #2 of said Nodaway County of their property without due process of law, and denies to said owners equal protection of the laws and in violation of Sec. 30, Art. II of the Constitution of the State of Missouri, Mo. St.Ann., in that it deprives said owners of their property without due process of law".

The demurrer was overruled. Thereupon defendants answered the petition by filing a general denial. The case was tried on the merits and judgment was for the plaintiff. Defendants appealed.

They contend that the record presents a constitutional question and for that reason this court has appellate jurisdiction. We do not think so. The demurrer presented a constitutional question. Even so, defendants abandoned said question by participating in a trial on the merits under a general denial. In other words, there is no constitutional question. Syz et al. v. Milk Wagon Drivers' Union, 323 Mo. 130, 18 S. W.2d 441; Lieber v. Heil, 325 Mo. 1148,...