Penner v. Whitesell, 9950
| Decision Date | 30 June 1976 |
| Docket Number | No. 9950,9950 |
| Citation | 538 S.W.2d 772 |
| Parties | Franz PENNER and Marian Penner, Plaintiffs-Appellants, v. Kenneth WHITESELL, Jr., et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Dan K. Purdy, Osceola, for plaintiffs-appellants.
Ray Fowler, Fowler & Short, El Dorado Springs, for defendants-respondents.
Before STONE, P.J., and HOGAN and TITUS, JJ.
Plaintiffs say they have a son-student in the R--2 School District High School at El Dorado Springs and that defendants (members of the board of education, principal of the high school and superintendent of the school district) require each student to make a refundable book deposit before textbooks are issued. Claiming the bookdeposit requirement violated the Free Textbook Law (§ 170.051, V.A.M.S.) and certain provisions of the Missouri Constitution, plaintiffs first sought a writ of mandamus to make defendants furnish their son with necessary textbooks 'free of charge and without the necessity of any deposit.' An alternative writ issued and defendants made return. Following an evidentiary hearing on the question of law and facts arising upon the return, the circuit court refused the peremptory writ. Although possessed of such a right (State ex rel. Brandon v. Hickey, 462 S.W.2d 159, 161 (Mo.App.1970)), plaintiffs did not appeal from the judgment denying the peremptory writ. Subsequently plaintiffs, after changing counsel and modes of remedy, instituted the present action against defendants for a declaratory judgment. Rule 87, V.A.M.R. The petition, in substantially the same form as that employed in the mandamus action, prayed the court to declare that the bookdeposit requirement contravened the law and the constitution. Defendants responded with a motion to dismiss stating, inter alia, that the judgment rendered in the mandamus suit estopped the plaintiffs from maintaining the declaratory judgment action because the mandamus judgment 'is res judicata and (plaintiffs) are forever barred from taking the same or similar action and from filing a new cause of action thereon, and the (mandamus) judgment rendered therein is a bar to the action herein filed.' After receiving into evidence the entire record in the mandamus action and hearing arguments of counsel anent defendants' motion, the court sustained the motion and dismissed the petition for declaratory judgment. Plaintiffs appealed.
In this appeal it is no concern of ours whether the judgment denying the peremptory writ of mandamus was erroneous vel non. As previously noted, plaintiffs did not appeal from the final appealable judgment denying the peremptory writ (Ex parte Skaggs, 19 Mo. 339--340 (1854)), so if the bar of res judicata is applicable here, it 'applies to erroneous judgments as well as to those free from error.' Sierk v. Reynolds, 484 S.W.2d 675, 681(5) (Mo.App.1972). Jurisdiction in the sense of power to hear and decide a cause, necessarily includes the power to decide wrongly as well as rightly (Pope v. United States, 323 U.S. 1, 14, 65 S.Ct. 16, 23(16), 89 L.Ed. 3, 13(13) (1944)), and when a final judgment, although wrong, is rendered on the merits in favor of a defendant and plaintiff does not undertake to correct it on application for a new trial or appeal, the plaintiff cannot thereafter maintain a second suit on the same cause of action. Restatement, Judgments, § 48.
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