Perseverance Common School Dist. No. 90 v. Honey

• Decision Date: 25 April 1963
• Docket Number: No. 8161,8161
• Citation: 367 S.W.2d 243
• Parties: PERSEVERANCE COMMON SCHOOL DISTRICT NO. 90, William Athey, Thelma Spear, George Mayfield, Al Pendergraft, Faye Pendergraft, Billy V. Hart, and Howard E. Hoover, Plaintiffs-Appellants, v. Gerald HONEY, Leonard Kneale, Lloyd Brock, Clarence Williams, Jr., Roy Smith, Lloyd Ralston, Individually and as Members of the Jasper County Board of Education, John F. Wilson, Superintendent of Schools of Jasper County, Missouri, and as Secretary of the Jasper County Board of Education, and Jasper County Board of Education, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 243

367 S.W.2d 243

PERSEVERANCE COMMON SCHOOL DISTRICT NO. 90, William Athey Thelma Spear, George Mayfield, Al Pendergraft Faye Pendergraft, Billy V. Hart, and Howard E. Hoover, Plaintiffs-Appellants, v. Gerald HONEY, Leonard Kneale, Lloyd Brock, Clarence Williams, Jr., Roy Smith, Lloyd Ralston, Individually and as Members of the Jasper County Board of Education, John F Wilson, Superintendent of Schools of Jasper County Missouri, and as Secretary of the Jasper County Board of Education, and Jasper County Board of Education, Defendants-Respondents.

No. 8161.

Springfield Court of Appeals, Missouri.

April 25, 1963.

Ralph Baird, Joplin, for plaintiffs-appellants.

Myers & Birk, Webb City, for defendants-respondents.

RUARK, Presiding Judge.

This is an appeal, as we shall hold, from an order setting aside a temporary injunction.

On June 21, 1962, plaintiffs, who are the Perseverance Common School District No. 90 of Jasper County, Missouri and a group of taxpayers resident in that district, sued the members of the Jasper County Board of Education individually and as members thereof, and one John F. Wilson Superintendent of Schools of Jasper County and Secretary of the Jasper County Board of Education, the purpose being to attack the legality of and prevent an election which defendants had called for June 30, 1962, for the purpose of submitting to the voters of the school districts known as Webb City, Perseverance Common No. 90, Underwood Common No. 100, and Prosperity Common No. 99 a proposition to create an enlarged district referred to as the 'Seventh Plan.'

The petition alleges that at 10:15 A.M. on February 23, 1962, there was delivered to County Superintendent Wilson a petition signed by more than fifteen qualified voters in each of these school districts, viz., Carterville Consolidated No. 91, Underwood Common No. 100, and Perseverance Common No. 90, which petition called for consolidation under the provisions of Section 165.273, V.A.M.S.; that, instead of calling an election and posting notices, Wilson caused certain members of the Jasper County Board to come together individually, without notice or quorum or in official meeting, and construct the 'Seventh Plan' of reorganization; that thereafter, and without authority of law, Wilson affixed his name to such 'Seventh Plan' and forwarded the same to the State Board of Education as though to proceed under Section 165.673, V.A.M.S., in an effort to pre-empt jurisdiction; that the State Board of Education received such petition on February 26, 1962, disapproved it, and returned it to the County Board; that thereafter the County Board refused and failed to alter, change, or revise said 'Seventh Plan' but instead resubmitted such original plan to the State Board; that the State Board was offered no opportunity to consider any revised plan; and that on June 5, 1962, the original 'Seventh Plan' was returned to the County Board without approval; that on June 13, 1962, the members of the Jasper County Board met in a closed meeting, from which were excluded the plaintiffs, the public, and the press, and voted to call the election of which plaintiffs complain. The prayer of the petition is for a permanent injunction from continuing the call for election of the 'Seventh Plan,' from giving notice, from designating polling places, selecting judges and clerks, and otherwise preparing for such election or charging plaintiff district with any cost thereof, for a declaratory judgment, and also for a temporary order restraining the above acts pending hearing on such injunction.

Thereafter the court issued what is entitled 'temporary restraining order,' reciting that a good and sufficient bond had been given and approved, and restraining the defendants from continuing the call or perfecting the election. '* * * this temporary injunction and restraining order shall be in force and effect * * * until such time as the Court may have the opportunity to try and determine the Petition for Injunction.'

The transcript, which is approved by both counsel for plaintiffs and counsel for defendants, does not show whether this order was issued ex parte or whether advance notice was given. No contention of want of notice was raised in the motion to dissolve (43 C.J.S. Injunctions Sec. 247, p. 986), or is made here. If any show-cause order was issued under Supreme Court Rule 92.19, V.A.M.R., such is not shown.

On June 13, 1962, defendant filed answer admitting the capacity and position of parties and the call and preparation for the proposed election. They further admit the presentation of the petition for consolidation at the time alleged but state that on February 21, 1962, the County Board adopted the 'Seventh Plan'; that it was mailed to the State Board on February 23, which board found the plan inadequate and returned it; that the County Board thereafter reviewed the rejected plan, made such alteration as it deemed advisable, and returned it to the State Board, which again disapproved it. Further answering, they allege that before the County Superintendent had an opportunity to investigate the petition for consolidation, six of the signers of the petition from Underwood District petitioned to remove their names, and said petition was granted, so that fewer than fifteen signers were left from Underwood. They further allege that thereafter the plaintiffs signed a petition to annex Perseverance Common to Carterville School District; that on election such proposition was defeated and that such conduct constituted an abandonment and an estoppel. The answer denies any secret meetings and asserts plaintiffs were heard at various meetings; and it also denies that the petition states a cause of action.

Thereafter the defendants filed a motion to dissolve, the ruling upon which is the subject of this controversy. The motion incorporates the answer and further pleads that the injunction is premature in that until the election is held there can be no determination as to whether there will be any damage to the plaintiffs.

Although the transcript before us does not show a setting, we can gather from the colloquy before the court and the letter hereinafter referred to that a hearing of some sort, for some purpose, had been set, or was at least contemplated, for July 2. On June 25, 1962, the judge of the circuit court wrote plaintiffs' attorney informing him that defendants had filed the motion to dissolve the temporary restraining order and that a hearing, originally scheduled for July 2, 1962, would be held on June 27, 1962, at 9:30 A.M. Apparently this letter was received by plaintiffs' counsel on June 26. On the same day he filed application for continuance, the burden of which was that he had relied on the July 2 setting; that material portions (some of them set forth) of defendants' answer were untrue and plaintiffs desired to prove such; that the change of setting was in violation of the Rules of the Circuit Court; that Rule 44.01(d) requires notice of five days on a motion to dissolve; that plaintiffs had had no notice in accordance with Rule VI of the circuit court; that plaintiffs had witnesses to prove that material parts of the motion to dissolve were untrue but would not be able to secure them by 9:30 A.M. on June 27.

On June 27, 1962, the court opened the proceedings by stating that the hearing was originally set for July 2; that in the meantime the court had reread and given further consideration to plaintiffs' petition and '* * * this is about the same situation as in the trial of a lawsuit, a civil case where at the close of the plaintiff's testimony, the defendant offers a motion to dismiss. Well, the customary manner is to go ahead and hear the rest of the case and then if there is something wrong with it, why, it can be disposed of. Now, I feel that in this situation, the best thing to do would be to set aside the temporary restraining order so that the election can be held. If the election doesn't carry, then the matter is solved. If the election does carry, the plaintiffs still have their remedy to determine whether or not the election is valid. Of course, the petition states that the election would be invalid, and if that is true, why, it would have no effect. Anyway, the matter is going to have to be tried out and if the election should fail to carry, why, then there is no problem about it. So, the Court, of its own motion, will set aside the temporary restraining order which has heretofore been granted.'

The plaintiffs' counsel attempted to obtain a stipulation that he had not been served with a copy of the motion to dissolve. The court stated, '* * * The Court feels that the Court has the right of its own motion to set aside the temporary restraining order, and, as I have stated in the record, I felt that that was to the best interest of all concerned, both plaintiffs and defendants.' And again in the colloquy, '--because I did go over the petition again, and I question whether or not injunctive relief is the proper remedy if, as you state in your petition, the election would be void. In other words, you don't need a restraining order to prevent an election which would not accomplish anything.' Thereafter counsel for plaintiffs offered to make certain proofs concerning the calling of and preparation for the election, which offers were refused; and thereupon the court made entry that the restraining order theretofore granted be set aside.

Was this an appealable order? Respondents contend that an order dissolving a temporary injunction is not appealable. They rely upon Rose v. Township Board of Combs Tp., 163 Mo. 396, 63 S.W. 698. As we interpret Section 512.020, V.A.M.S., and its ancestors, an appeal may be taken 'from any order * * * dissolving an injunction.' State ex rel. Manning v. Smith, 188 Mo. 167, 86 S.W. 867. ¹

Was the order appealed from an injunction? Various texts and cases distinguish between a 'temporary restraining order,' as this one...