Norval v. Whitesell
Decision Date | 09 September 1980 |
Docket Number | No. 61910.,61910. |
Citation | 605 S.W.2d 789 |
Parties | Mary and John NORVAL, Jr., etc., Appellants, v. Kenneth WHITESELL, Jr., et al., Respondents. |
Court | Missouri Supreme Court |
Mark R. Singer, Overland Park, Kan., Arthur A. Benson, II, Kansas City, for appellants.
Ray Fowler, Nevada, for respondents.
Appellants' petition for a declaratory judgment and injunctive relief was dismissed by the trial court on the basis that the judgment in a previous case was res judicata of the issues pleaded. The judgment of dismissal was affirmed by the Missouri Court of Appeals, Southern District, but on application of appellants the case was transferred to this court.
In Count I of their petition appellants alleged they are the parents of a student attending the secondary school in the R-2 School System located at El Dorado Springs, Missouri, and that pursuant to a rule adopted by the School Board of said district the respondents, as officials of that district, have informed them that children attending the El Dorado High School would not be loaned free textbooks unless they made a cash deposit in the amount of $7.00 as a book deposit. They further allege that the rule is arbitrary, capricious and beyond the authority of the said School Board, and that it violates § 170.051 RSMo 1978, and Art. IX, § 1(a) Const. Mo.
By Count II of their petition appellants sought an injunction prohibiting such alleged unlawful conduct of respondents, and by Count III they asked for the return of the $7.00 collected from them.
A brief statement of the history of this and related litigation is necessary. In September 1973, Franz and Marian Penner filed suit in the Circuit Court of Cedar County, Missouri against the then members of the Board of Education of the R-2 School District at El Dorado Springs seeking a writ of mandamus. An alternative writ was issued. The petition alleged that the petitioners were the parents of two children who were students at the El Dorado High School, and that petitioners had been advised that textbooks would not be issued to their children unless a book deposit of $10.00 was made for each child. It was then alleged that the rule requiring the deposit was arbitrary, capricious, unreasonable and unlawful, and that petitioners had no plain, speedy or adequate remedy at law for the reason that any proceeding other than mandamus would not be finally determined until after an unreasonable time had expired. In the return to the alternative writ the defendants responded that the children had been tendered textbooks conditioned upon the payment of a cash deposit of $7.00 per student which would be refunded at the end of the school year if the books were returned in good condition, and that at the student's option a locker could be rented at the rate of $3.00 a year. In October, 1973 the court entered judgment denying the writ of mandamus. No appeal was perfected.
In July 1974 the Penners filed a second suit in the same court in which they sought a declaratory judgment that the requirement of a book deposit violated § 170.051 RSMo and that the requirement was in violation of the Missouri Constitution. The defendants filed a motion to dismiss alleging, among other grounds, that the judgment in the mandamus action was res judicata. The petition was dismissed and the judgment of dismissal was affirmed by the Missouri Court of Appeals. Penner v. Whitesell, 538 S.W.2d 772 (Mo.App.1976).
On December 2, 1975 the petition in the pending suit was filed by appellants, and respondents filed a motion to dismiss in which they alleged that the judgments in the two previous cases disposed of the issues and therefore constituted res judicata. That motion was sustained and this appeal followed.
The issue in this case is whether the final judgment entered in 1973 denying the Penners a writ of mandamus is res judicata as to appellants in this suit for a declaratory judgment and injunctive relief. We hold that it was not.
What is referred to as the doctrine of estoppel by judgment is set forth in Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo. banc 1966) by way of a quotation from Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, l. c. 122-123 as follows:
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