Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist.

• Decision Date: 07 January 1958
• Docket Number: No. 29787,29787
• Parties: MILTON CONSTRUCTION & SUPPLY COMPANY, a corporation, Plaintiff, and Vincent F. Palermo and Lois Nadine Palermo, etc. (Plaintiffs), Respondents, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, a municipal corporation, Defendant, and William L. Whalen et al., as Individuals and as Representatives of a Class or Classes of Persons Similarly Situated, Intervenors, Appellants.
• Court: Missouri Court of Appeals

Page 769

308 S.W.2d 769

MILTON CONSTRUCTION & SUPPLY COMPANY, a corporation Plaintiff, and Vincent F. Palermo and Lois Nadine Palermo, etc. (Plaintiffs), Respondents, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, a municipal corporation, Defendant, and William L. Whalen et al., as Individuals and as Representatives of a Class or Classes of Persons Similarly Situated, Intervenors, Appellants.

No. 29787.

St. Louis Court of Appeals, Missouri.

Jan. 7, 1958.

Val Terschluse and Strubinger, Tudor, Tombrink & Wion, St. Louis, for intervenors-appellants.

James J. Rankin, St. Louis, for respondents Palermo.

RUDDY, Presiding Judge.

This is an appeal from an order of the Circuit Court of St. Louis County granting the application of Vincent Palermo and wife to intervene as representatives of a class and denying the application of appellants to intervene as representatives of the class.

The applications to intervene were filed in a case wherein the Milton Construction & Supply Company, a corporation, is plaintiff and The Metropolitan St. Louis Sewer District, a municipal corporation, is defendant.

We shall refer to the plaintiff as Construction Company; to the defendant as Sewer District; to the intervenors William L. Whalen et al. as appellants; and to the intervenors Vincent F. Palermo and Lois Nadine Palermo, his wife, as respondents.

The petition filed by the Construction Company alleged that it was the owner of a subdivision described in said petition and for the purpose of providing sanitary sewers for use and benefit of the owners and purchasers of lots in said subdivision, it applied to the Sewer District for permission to install sanitary sewers in said subdivision. It was further alleged that as a condition to the granting of the permission requested, the Sewer District required the Construction Company to enter into an agreement. One of the conditions in said agreement, as shown by the petition, was that the Construction Company deposit with the Sewer District the sum of $200 for each lot for which a sanitary sewer connection was requested. In the agreement was a provision that if 'the subdistrict in which the said subdivision is located shall vote for the construction of a trunk sanitary sewer to be financed by any form of obligation of the subdistrict, the amounts held on deposit for the benefit of each lot shall be refunded to the persons owning such lots on the date that the indebtedness is authorized by such vote.'

The Construction Company further alleged in its petition that the portion of the aforesaid provision which required it to refund $200 for each lot to the persons owning said lots on the date the indebtedness was authorized by such vote was an arbitrary, unreasonable, improper and unlawful lawful requirement and that it executed said agreement with the express understanding that it did not waive its right to requirement and that it executed and unenforceable by a court of competent jurisdiction.

It was further alleged that the Construction Company installed sanitary sewers at its own expense and that, thereafter, the subdistrict voted to issue bonds for the construction of a trunk sanitary sewer. Thereafter, the Sewer District gave notice that it would refund the sum of $200 for each lot to the persons owning lots on the date when the indebtedness was authorized.

The petition further alleged that the provision of the agreement complained of was void and unenforceable and asked judgment against the Sewer District for $59,400, the amount remaining on deposit.

The Sewer District in its answer denied the allegations of the petition and alleged that no amount was due or owing to the Construction Company.

The respondents filed an application to intervene, attaching thereto a petition to intervene for themselves and as representatives of the class of persons similarly situated (the owners of 297 lots), alleging inter alia, that they were the owners of one lot in the subdivision and the improvements thereon; that the Construction Company collected from them and other lot owners the sum of $200 on each lot as part purchase price, representing the deposit required pursuant to the written agreement between the Construction Company and the Sewer District; that the representation by the existing parties to the suit as filed is or may be inadequate and that respondents and other members of the class may be bound by a judgment in the action; that the rights of respondents and other members of the class are joint, common and several; that there is a common question of law and fact affecting the several rights of respondents and the members of the class; that a common relief is sought; that this action will adjudicate their several claims; that respondents will fairly and adequately represent the whole of said class; that the persons constituting the class are very numerous, numbering more than 100 persons and that it is impracticable to bring them all before the court; and that their representation of the class will secure a final and binding judgment as to the rights of the members of the class.

The appellants, numbering approximately 190 persons and representing approximately 100 units of the 297 units involved, filed their application to intervene for themselves individually and as representatives of the class of persons similarly situated. Thereafter, additional parties representing additional units sought to join in the application of the appellants to intervene. Appellants' petition to intervene contained allegations similar to those in the petition of respondents, with one exception. The appellants alleged that individually they are themselves a representative cross-section of the entire class sought to be represented and by their appearance in said case for themselves and as representatives of the class they will fairly and adequately represent the class.

The two applications to intervene were submitted to the court. No evidence in support of their application was offered by respondents and the only evidence offered by the appellants in support of their application was a contract of employment of attorneys for appellants containing the signatures of the owners of approximately 100 units. Subsequent to the aforesaid submission of the applications, an affidavit signed by seven persons was filed with the court. This affidavit stated that the affiants established themselves as a fact finding committee in connection with the controversy concerning the funds on deposit with the Sewer District; that the committee was formed at an open meeting attended by many persons interested in the instant litigation; that they contacted 'well over a majority of the total of 297 lot owners' and that this majority selected the appellants as their representatives 'to intervene for and in their behalf in the above lawsuit and to represent their interests.' It was further stated that no other persons other than appellants were chosen to represent the group.

The trial court entered its order sustaining respondents' application to intervene as individuals and as representatives of the whole class and allowed appellants to intervene as individuals, but not as representatives of the whole class. The appeal was taken from this order.

Before discussing the points asserted by appellants, we must consider the point raised by respondents which charges that this Court is without jurisdiction of this appeal for the reason that none of the orders appealed from are final judgments in the sense that appellants are denied some substantive right. Respondents contend that appellants are not aggrieved, because their application to intervene as individuals was granted and as such individuals they may protect all their rights. It is their position that as individuals, appellants can assert every right, make every contention, introduce any evidence, etc., they could assert as representatives of the class. Further, that the orders made do not operate prejudicially and directly upon appellants' property, pecuniary or...