Hardwicke v. Wymore
| Decision Date | 05 December 1921 |
| Docket Number | No. 14136.,14136. |
| Citation | 235 S.W. 171,208 Mo. App. 414 |
| Parties | HARDWICKE v. WYMORE, Road District Trustee. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.
Action by Claude Hardwicke against C. D. Wymore, Trustee of and for the Kansas City Liberty Boulevard Road District of Clay County. From judgment for plaintiff, defendant appeals. Transferred from Supreme Court (228 S. W. 757). Affirmed.
James S. Simrall and Theodore Emerson, both of Liberty, for appellant.
Ralph Hughes, a Liberty, for respondent.
This is a suit for attorney's fee. The county court of Clay county, Mo., made an order of a preliminary character under section 10612, R. S. 1909, for the organization and incorporation of the Kansas City Liberty Boulevard Road District of Clay county, and appointed commissioners therefor under the provisions of section 10613. The district was duly organized, and W. W. Cosby, A. W. Lightburne, and T. J. Ward named as commissioners thereof. They qualified as such commissioners, organized and incorporated said district as provided by law, and began the performance of their duties as imposed by section 10614 et seq.
Plaintiff was employed by said commissioners as counsel to take all legal steps necessary in the organization and incorporation proceedings of said district, and afterwards to defend an action brought by W. S. Embree and others against said district to enjoin it from selling $77,000 in bonds, the proceeds of which were to be used in paying the entire cost of the work necessary to the completion of the improvements made therein. The bonds were to be paid by a special benefit assessment on all of the lands comprising the district. Plaintiff was to perform some additional work, including the determination of the ownership of more than 4,100 tracts of land in the proposed district and listing the same. Somewhat more than five years before the institution of this suit the commissioners agreed that plaintiff should be paid $750 for one item of this service and $50 for another item.
After an election was held, as required by section 10616, R. S. 1909, at which election the vote was for improvements at an estimated cost of $70,000, payable by special assessment of land in the district as benefits, and before a sale of such bonds had been completed and before other funds had been set aside to the district, suit was instituted against Commissioners Cosby, Lightburne, and Ward, and against the said district, by several landowners in the district. The purpose of said suit was to have declared unconstitutional the law by which the district was incorporated, and to enjoin the issuance of bonds. Thereafter said commissioners employed plaintiff to represent them in said suit in the circuit court, and in the Supreme Court of Missouri if the case should go there, for which services they agreed to pay plaintiff a fee of $1,100, but nothing in the event of fine judgment against defendants in the suit.
In the spring of 1914 said suit was decided in the Supreme Court of Missouri in favor of defendants (257 Mo. 593, 166 S. W. 282), but was taken to the Supreme Court of the United States where, in the spring of 1916, said court decided said cause in favor of defendants (240 U. S. 242, 36 Sup. Ct. 317, 60 L. Ed. 624).
In June, 1917, plaintiff was employed under a written contract with the district to perform other services for which he was to be paid $200, which is included as one item in this suit. To this last item defendants do not now object.
During the pendency of the suit to have the law declared unconstitutional no funds were set aside to the district as required by law, and the said commissioners did not institute proceedings while the suit was pending to recover said funds. And after the final determination of said suit the officers whose duty it was to set aside such funds for the use of the district refused to perform such duty, contending that the law, so far as it required the setting aside such funds, was unconstitutional. Suit was then instituted to recover the revenues required by section 10624, R. S. 1909, and resulted in the recovery of only a small portion of the funds to which the district, up to that time, had become entitled.
By that time said Cosby, Lightburne, and Ward had ceased to be commissioners of the district; others having been appointed in their stead. In the meantime Judge Williams, who had represented the district in the Supreme Court of the United States, had died, and the executors of his estate insisted upon the payment of the fee still due for Judge Williams' services. `The commissioners then acting paid Judge Williams' estate for his services out of the funds recovered to the district, and the remaining funds so recovered were insufficient to pay plaintiff. The funds so remaining were used by the commissioners to repair the roads in the district, and the commissioners represented they would pay plaintiff as soon as they could get more funds to which the district was entitled.
Thereafter another suit was instituted to secure the setting aside of additional, or other, funds to which the district was entitled, and from which plaintiff might have been paid. Pending this last-named action, and on November 17, 1917, the county court made an order dissolving said district, and appointed C. D. Wymore as trustee therefor.
On March 11, 1918, plaintiff filed his amended petition in the circuit court of Clay county, wherein he sought to recover judgment for his said services against defendant for $2,652.10. Elsie Harmon, a stenographer, had a claim for stenographic work done for the said district, and she filed an intervening petition to compel said trustee to pay the same.
The cause was tried to the court, and on March 27, 1918, a judgment was rendered in favor of plaintiff for $2,150 and in favor of intervenor Harmon for $7.25. Motions for new trial and in arrest were duly filed and overruled, and the cause was appealed to the Kansas City Court of Appeals, and by that court was certified to the Supreme Court of Missouri, on the ground that a constitutional question was involved.
The Supreme Court, however, held that the constitutional question here raised had been so long and uniformly decided as to be a question no longer, but at rest under the doctrine of stare decisis, and returned the cause to this court. See Hardwicke v. Wymore, 228 S. W. 757.
Defendant urges that the court erred in allowing the items of $750 and $50, because incurred more than five years before the institution of the suit and...
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