Pearson Drainage Dist. v. Erhardt
| Decision Date | 15 April 1947 |
| Docket Number | No. 27213.,27213. |
| Citation | 201 S.W.2d 484 |
| Parties | PEARSON DRAINAGE DISTRICT, A CORPORATION, APPELLANT, v. JOHN ERHARDT, REVIVED IN THE NAME OF TOM DEVINE, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Audrian County. — Hon. Frank Hollingsworth, Judge.
AFFIRMED.
Stinson, Mag, Thomson, McEvers & Fizzell and Clifford B. Kimberly, Milligan, Kimberly & Deacy for appellant.
(1) The rule of res judicata cannot be involved where the parties were not the same or where the precise issue was not determined. (a) Defendant has pleaded that by his actions he attached himself as a party to the Hammett case so as to bar this action. State ex rel. Arthur et al. v. Hammett, 235 Mo. App. 927, 151 S.W. (2d) 695; Van Hafften v. Clayton, 259 S.W. 530; Walz et al. v. Agricultural Ins. Co., 282 Fed. 646; 34 C.J., Par. 1427, p. 1006; also Par. 1429, p. 1009, 30 Am. Jur., p. 954, Sec. 222; State v. City of St. Louis, 145 Mo. 551, 46 S.W. 981. (b) The Hammett case did not and could not determine the issues presented here. LaRue v. Kempf, 186 Mo. App. 57, 171 S.W. 588; State v. Mo. Public Service Co., 351 Mo. 961, 174 S.W. (2d) 871; Nevins v. Coleman, 198 Mo. App. 252, 200 S.W. 445; State ex rel. Arthur v. Hammett, 235 Mo. App. 927, 151 S.W. (2d) 695. (c) The Boggs case, which was a suit for taxes on Boggs's land, did not and could not determine the liability of Defendant for taxes levied upon his land. Van Hafften v. Clayton, 259 S.W. 530; Keeton v. National Union, 178 Mo. App. 301; Stewart v. City of Springfield, 350 Mo. 234, 165 S.W. (2d) 626. (2) The Hammett case did not and could not decide or touch the question of the de facto existence of plaintiff. (a) The opinion in the Hammett case shows that the question of the de facto existence of plaintiff could not possibly have been an issue. State ex rel. Arthur v. Hammett, 235 Mo. App. 927, 151 S.W. (2d) 695; 14 C.J., p. 214. (b) There is a valid law under which plaintiff may lawfully exist. Chap. 79, Art. 1, R.S. Mo., 1939; Garden of Eden Drainage District v. Bartlett Trust Co., 330 Mo. 554, 50 S.W. (2d) 627; Meramec Spring Park Co. v. Gibson, 268 Mo. 398, 188 S.W. 179; State ex rel. Brown v. Wilson, 216 Mo. 215, 115 S.W. 549. (3) Defendant is precluded from questioning the corporate existence of plaintiff. (a) Defendant is estopped by his acts and the acts of his predecessor in title to attack the existence of plaintiff as a corporate entity. 18 C.J.S., p. 510; John P. Thistle, etc., v. Buford, 50 Mo. 278. (b) Laches is also estoppel. Graves v. Little Tarkio Drainage Dist., 345 Mo. 557, 134 S.W. (2d) 70; Tarleton Drainage Dist. v. Am. Invest. Co., 52 S.W. (2d) 738, 186 Ark. 20; 28 C.J.S., p. 338; Lincoln v. Moore (Iowa), 192 N.W. 299. (4) Upon the facts in evidence in this case plaintiff can be nothing less than a de facto corporation. Gray v. School District, 224 Mo. App. 905, 28 S.W. (2d) 685; State v. Blair, 245 Mo. 680, 151 S.W. 148; 14 C.J., p. 208. (5) The minutes of a corporation regularly made and kept are competent and the best evidence of the truth and facts of its recitations. State v. Hefferman, 243 Mo. 442, 148 S.W. 90; 22 C.J., pp. 1011 and 1013; Howard v. Strode, 242 Mo. 210, 146 S.W. 792.
Windsor & Wooldridge and Clark, Boggs, Peterson & Becker for respondent.
(1) Respondent exercised such management and control of the Hammett case as to make the decision therein binding upon him. State ex rel. Arthur v. Hammett, 151 S.W. (2d) 695; Leahy v. Mercantile Trust Company, 296 Mo. 561, 247 S.W. 396, 404; State v. City of St. Louis, 145 Mo. 551, 46 S.W. 981; Van Hafften v. Clayton (Mo. App.), 259 S.W. 530; Civil Code of Missouri, Sec. 114; Laws of Missouri, 1943, page 388; Missouri R.S.A., Sec. 847.114; Johnson v. Frank, (Mo.) 191 S.W. (2d) 618, 621. (2) When the court decreed in the Hammett case that appellant was not a corporation and that the circuit court never had jurisdiction to create a drainage district, that ruling became binding upon appellant in any action it might take to collect taxes. State ex rel. Arthur v. Hammett, 151 S.W. (2d) 695. (3) The judgment in the Boggs case held that appellant is not entitled to maintain a suit and that judgment is res adjudicata on all questions here presented. The Boggs case concludes all issues that were litigated therein or might have been litigated therein. State ex rel. Arthur v. Hammett, 151 S.W. (2d) 695; Civil Code of Missouri, Sec. 114; Laws of Missouri, 1943, page 388; Missouri R.S.A., Sec. 847.114; Johnson v. Frank, (Mo.) 191 S.W. (2d) 618, 621. (4) The Hammett and Boggs case passed upon appellant's right to maintain this or any other suit to collect these drainage taxes. State ex rel. Arthur v. Hammett, 151 S.W. (2d) 695. (5) A drainage district which is a subdivision of the state empowered to levy and collect taxes cannot be established by estoppel. Bushnell et al. v. Mississippi and Fox River Drainage District, 111 S.W. (2d) 946, 952; State ex rel. Jacoby v. Missouri Valley Drainage District of Polk County, 185 S.W. (2d) 800; State ex rel. Arthur v. Hammett, 151 S.W. (2d) 695; Rhodus v. Geatley, 347 Mo. 397, 147 S.W. (2d) 631; State on inf. of McKittrick ex rel. City of Trenton v. Missouri Public Service Corporation, 351 Mo. 691, 174 S.W. (2d) 871.
This is an action in three counts which was brought by Pearson Drainage District in its corporate name to recover delinquent taxes aggregating $833.62 which had been assessed for the years 1933, 1934, and 1935 against a certain tract of land within the district owned by one John Erhardt. Judgment was also prayed for the statutory penalty, costs of suit, and a reasonable attorneys' fee to be fixed by the court. Pending the action Erhardt conveyed the land to one Tom Devine, who was thereupon substituted as the party defendant.
Originating in the Circuit Court of Howard County, the case was sent on change of venue to the Circuit Court of Audrian County, wherein, by a pre-trial agreement, the case was submitted upon the single issue of res adjudicata as to the question of plaintiff's corporate entity, with the understanding that if the plea was sustained, final judgment should thereupon be entered against plaintiff.
The court found, upon the evidence adduced, that the plea of res adjudicata was well taken, and that it had theretofore been adjudicated, in cases binding upon both parties, that plaintiff was neither a corporation de jure nor de facto with capacity to maintain this action. The court also found that the evidence did not support plaintiff's contention that defendant was estopped to deny plaintiff's corporate existence. Judgment was accordingly entered that plaintiff have and take nothing on its petition, and that defendant go hence without day and have and recover all costs from certain named individuals, who, at the time of the institution of the action, were acting as plaintiff's board of directors.
Following the entry of such judgment, plaintiff filed its motion for a new trial; and this being overruled, plaintiff gave notice of appeal to the Supreme Court, which was thought to have appellate jurisdiction upon the grounds that the case required the construction of the revenue laws of the state, and that title to real estate was involved. The Supreme Court found, however, that it was without jurisdiction, and consequently ordered that the case be transferred here. [Pearson Drainage Dist. v. Erhardt (Mo.), 196 S.W. (2d) 855.]
On March 28, 1928, certain landowners in Howard County filed in the circuit court of that county their articles of association and petition praying the court that the lands described therein be declared a drainage district under the provisions of Sections 12324 et seq., Revised Statutes of Missouri, 1939. Missouri Revised Statutes Annotated, sections 12324 et seq.
The court, on June 1, 1928, entered on its docket a notation that the application was heard and granted and a decree rendered creating the district to be known as Pearson Drainage District. A similar notation was made in the clerk's minute book for that day. However the decree itself, for one reason or another, was not duly entered of record; and the failure of the court in such respect has figured in all the subsequent controversy over the question of the validity of the district's corporate existence.
On October 18, 1937, more than nine years after the decision of the court that the application be granted and a decree be entered creating the district as a public corporation of this state, the district, in its own corporate name, filed a petition in the circuit court for the entry of a decree nunc pro tunc in accordance with the finding of the court on June 1, 1928. It is significant that this nunc pro tunc proceeding was not a collateral matter arising after incorporation, but instead was brought by the district itself in the very proceeding for its incorporation. A number of landowners, including Tom Devine, contested the right of the district to have the entry of a nunc pro tunc decree; and when the court indicated its intention to sustain the district's petition, a writ of prohibition was sought in the Kansas City Court of Appeals at the instance of two of the landowners, Harriett W. Arthur and John E. Stapleton, who were selected as relators in the prohibition case for the reason that they had been given no notice of the nunc pro tunc proceeding.
The Kansas City Court of Appeals ordered the writ to issue directed to Hon. Aubrey R. Hammett, the judge of the circuit court; and after a hearing a decision was rendered making the preliminary rule in prohibition absolute. [State ex rel. v. Hammett, 235 Mo. App. 927, 151 S.W. (2d) 695.]
The Court of Appeals pointed out that in a proceeding for the incorporation of a drainage district, the articles of association and petition must comply substantially, if not strictly, with the provisions of law relating to the organization of drainage districts by circuit...
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