Norval v. Whitesell, No. 61910.

CourtMissouri Supreme Court
Writing for the CourtMark R. Singer, Overland Park, Kan., Arthur A. Benson, II, Kansas City, for appellants
Citation605 S.W.2d 789
PartiesMary and John NORVAL, Jr., etc., Appellants, v. Kenneth WHITESELL, Jr., et al., Respondents.
Docket NumberNo. 61910.
Decision Date09 September 1980

605 S.W.2d 789

Mary and John NORVAL, Jr., etc., Appellants,
v.
Kenneth WHITESELL, Jr., et al., Respondents.

No. 61910.

Supreme Court of Missouri, En Banc.

September 9, 1980.


Mark R. Singer, Overland Park, Kan., Arthur A. Benson, II, Kansas City, for appellants.

Ray Fowler, Nevada, for respondents.

ALDEN A. STOCKARD, Special Judge.

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

605 S.W.2d 790
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...

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26 practice notes
  • JBK, Inc. v. City of Kansas City, Mo., No. 83-1326-CV-W-0.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • January 14, 1986
    ...the doctrine of "virtual representation." Defendants rely primarily upon the Missouri Supreme Court's decisions in Norval v. Whitesell, 605 S.W.2d 789 (Mo.1980) (en banc), State ex rel. Fort Zumwalt School Dist. v. Dickherber, 576 S.W.2d 532 (Mo. 1979) (en banc), and Siebert v. City of Colu......
  • State ex rel. Hewitt v. Kerr, No. SC 93846
    • United States
    • Missouri Supreme Court
    • April 28, 2015
    ...limited circumstances as it “is a hard and fast unreasoning writ, and is reserved for extraordinary emergencies.” Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980).A court should issue a writ of mandamus only if the relator has demonstrated a clear, unequivocal, and specific right to......
  • Investors v. Kan. City Downtown Streetcar Transp. Dev. Dist., No. WD 76354.
    • United States
    • Missouri Court of Appeals
    • December 24, 2013
    ...preclusion principles described in Powell have been repeated, and applied, in a number of later cases. See, e.g., Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980); Seibert v. City of Columbia, 461 S.W.2d 808, 810–11 (Mo. banc 1970) (“It would be unthinkable in our system of jurispru......
  • State ex rel. Chassaing v. Mummert, No. 76649
    • United States
    • United States State Supreme Court of Missouri
    • November 22, 1994
    ...a petition for a writ of mandamus. Mandamus will not lie. Mandamus is a discretionary writ, not a writ of right. Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980). Mandamus will lie only when there is a clear, unequivocal, and specific right. State ex rel. Sayad v. Zych, 642 S.W.2d 9......
  • Request a trial to view additional results
26 cases
  • JBK, Inc. v. City of Kansas City, Mo., No. 83-1326-CV-W-0.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • January 14, 1986
    ...the doctrine of "virtual representation." Defendants rely primarily upon the Missouri Supreme Court's decisions in Norval v. Whitesell, 605 S.W.2d 789 (Mo.1980) (en banc), State ex rel. Fort Zumwalt School Dist. v. Dickherber, 576 S.W.2d 532 (Mo. 1979) (en banc), and Siebert v. City of Colu......
  • State ex rel. Hewitt v. Kerr, No. SC 93846
    • United States
    • Missouri Supreme Court
    • April 28, 2015
    ...limited circumstances as it “is a hard and fast unreasoning writ, and is reserved for extraordinary emergencies.” Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980).A court should issue a writ of mandamus only if the relator has demonstrated a clear, unequivocal, and specific right to......
  • Investors v. Kan. City Downtown Streetcar Transp. Dev. Dist., No. WD 76354.
    • United States
    • Missouri Court of Appeals
    • December 24, 2013
    ...preclusion principles described in Powell have been repeated, and applied, in a number of later cases. See, e.g., Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980); Seibert v. City of Columbia, 461 S.W.2d 808, 810–11 (Mo. banc 1970) (“It would be unthinkable in our system of jurispru......
  • State ex rel. Chassaing v. Mummert, No. 76649
    • United States
    • United States State Supreme Court of Missouri
    • November 22, 1994
    ...a petition for a writ of mandamus. Mandamus will not lie. Mandamus is a discretionary writ, not a writ of right. Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980). Mandamus will lie only when there is a clear, unequivocal, and specific right. State ex rel. Sayad v. Zych, 642 S.W.2d 9......
  • Request a trial to view additional results

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