Massey v. Howard, 21595

• Court: Missouri Court of Appeals
• Writing for the Court: DEW
• Citation: Massey v. Howard, 240 S.W.2d 743 (Mo. App. 1951)
• Decision Date: 04 June 1951
• Docket Number: No. 21595,21595
• Parties: MASSEY v. HOWARD et al., Members of Board of Supervisors of Honey Creek Drainage Dist.

Page 743

240 S.W.2d 743

MASSEY v. HOWARD et al., Members of Board of Supervisors of Honey

Creek Drainage Dist.

No. 21595.

Kansas City Court of Appeals, Missouri.

June 4, 1951.

Joseph J. Shy, Chillicothe, for appellant.

None, for respondent.

DEW, Judge.

Appellant sought the appointment of a receiver of the Honey Creek Drainage District to carry out the terms of a judgment and decree against that District. The court denied the application, from which ruling this appeal was taken.

The appellant obtained a judgment and decree against the District in 1943 in the Circuit Court of Livingston County. According to the facts found in that decree, the Honey Creek Drainage District had been organized in 1927, under Article 1, Chapter 28, R.S.Mo., 1919, R.S.1949, Sec. 242.010 et seq., for the purposes of draining and reclaiming certain lands in the above county; that pursuant thereto a Board of Supervisors had been elected, which thereafter incurred certain preliminary expenses for which the District issued warrants, and which were and continue to be the obligation of such District; that the warrants are now the property of the plaintiff in said cause; that other obligations of the District are outstanding; that the defendant members of the Board of Supervisors have made no attempt to enforce the collection of any tax to pay such obligations; that A. M. Howard, J. M. Hughes, J. O. Mack and Roy Pruitt compose the Board of Supervisors. It was adjudged and decreed in that cause that the plaintiff have judgment against the District for the warrants described in his petition; that the defendant board members and the District be and they were directed to proceed to levy a preliminary tax not to exceed 50 cents an acre on all lands within the District, and to take all necessary steps to levy and to collect said tax for the payment of such obligations. The court in its judgment entry retained jurisdiction of the cause for the purpose of supervising and enforcing the judgment, and for other orders relating thereto.

According to the facts alleged under oath in the application for a receiver filed in the above cause February 28, 1950, by the appellant, the defendants neglected and refused to comply with the above judgment and decree, announcing their intention to seek a dissolution of the Drainage District and the payment of their obligations in connection with such dissolution proceedings, but the defendants have failed and neglected to have the District dissolved. In the meantime, defendants A. M. Howard and J. M. Hughes have died and defendant J. O. Mack has sold the land owned by him in the District and moved from Livingston County, thereby becoming ineligible to remain a member of the Board of Supervisors. It was alleged that the only remaining member of the Board, Ray Pruitt, had no authority to act for the Board or for the District. No annual meetings of the Board have been held since April 27, 1933, for the election of officers and members of the Board. The landowners refused to attend the last two annual meetings called by the Board in 1934 and 1935; that the corporation has thus ceased to function for the purposes for which it was organized; that no tax has ever been collected to pay the warrants issued by the District for the preliminary costs and expenses incurred, and there is no money, and never has been any money in its treasury with which to pay its warrants therefor. The Secretary-Treasurer, F. L. Arthaud, has died and no successor has been elected or appointed, and that there are now no officers of the District except defendant Roy Pruitt, whose term of office as member of the Board of Supervisors has long since expired, and who is now a de facto officer only for the reason that his successor has not been elected.

In his application the appellant states that he has no remedy at law, and that he will suffer irreparable loss of the proceeds of his warrants unless a receiver is appointed to take charge of the functions and affairs of the Drainage District, and carry out the terms of the judgment and decree referred to 'and to levy the preliminary tax' as decreed, and cause same to be collected. The prayer was that the court appoint a receiver of the District with directions to carry out the directions, order, judgments and decrees of the court referred to, and make report of his proceedings to the court.

Notice of the above application for the appointment of a receiver was served on defendant Roy Pruitt, the only remaining member of the Board of Supervisors....