Pfitzinger v. Johnson
| Decision Date | 08 February 1944 |
| Docket Number | No. 26484.,26484. |
| Citation | 177 S.W.2d 713 |
| Parties | PFITZINGER v. JOHNSON et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.
"Not to be reported in State Reports."
Proceeding in mandamus by Godwin Pfitzinger against Walter L. Johnson and others, composing the Board of Education of the School District of Kinloch, and the School District of Kinloch to compel members of the Board to levy a tax sufficient to pay a judgment, and upon receipt of money for the tax to pay the same over to relator. From an adverse judgment, the School District of Kinloch appeals.
Judgment reversed, and peremptory writ of mandamus quashed.
George L. Vaughn, of St. Louis, for appellant.
C. L. Shotwell, of Ballwin, for respondents.
This proceeding in mandamus was instituted by Godwin Pfitzinger, as relator, in the Circuit Court of St. Louis County, Missouri, to compel the members of the Board of Education of the School District of Kinloch, of said county, to levy a tax sufficient to pay a judgment which relator holds against said School District, and, upon receipt of the money for said tax, to pay the same over to relator.
It appears from the record that Pfitzinger, on January 2, 1940, filed a suit, as plaintiff, against "W. L. Johnson, Atkis Boyd, Dr. J. S. Dorsey, Harvey Williams, Howard English, Willie Head, Members of Kinloch School District," in the court of Justice of the Peace Mueller of St. Ferdinand Township, to recover $201.20 for oil and gasoline furnished to said School District, and garage rent for its automobile. A change of venue was taken by one of the defendants therein and the cause was sent, on January 3, 1940, to Justice of the Peace Leiweke, of Meramec Township of said county, where there was filed what relator's counsel refers to as an "amended" petition making "School District of Kinloch, formerly School District No. 18," a party defendant. Said petition in said cause was introducted in this cause as relator's Exhibit A, and is as follows:
The Exhibit A, referred to in the above document, was introduced in evidence herein as Exhibit B. It is a typewritten statement consisting of four and one-half pages of items under the following heading:
"Berkeley, Mo., January 2, 1940.
School District of Kinloch.
(Formerly School District No. 18.)
to
Godwin Pfitzinger
Doing Business as Pfitzinger Service
Station, Dr.
For furnishing gas, oil, patches, battery,
rent, etc."
Here follows the items beginning with July 27, 1937, and ending with December 24, 1937, totaling $173.21, and then:
"Garage rent for truck from date of
purchase, March, 1937, to December,
1937, $30,00.
Total, $203.21."
On the reverse side of said exhibit appears:
"142486 — Division 2.
Filed
March 9, 1940
Raymond O. Douglas,
Circuit Court Clerk."
No other file markings appear thereon.
The evidence herein shows that said Exhibit B was filed by leave by Pfitzinger's attorney in Justice Leiweke's court but was never filed in Justice Mueller's court where that suit was begun. Said cause was tried in Justice Leiweke's court on March 6, 1940. After a hearing Justice Leiweke rendered judgment in favor of Pfitzinger and against the School District of Kinloch in the sum of $203.20, and costs amounting to $16.60. The slight difference between the amount involved in Justice Mueller's court, namely, $201.20, and the amount of the judgment in Justice Leiweke's court, $203.20, is not explained in the record. However, it is immaterial.
The School District of Kinloch took an appeal from said judgment of Justice Leiweke to the Circuit Court of St. Louis County, Missouri, where it was numbered Cause No. 142,486 of the causes in said court, and later was by said court dismissed. Judgment was rendered against the School District of Kinloch for the costs of said court. The judgment of Justice Leiweke thereby became final and, upon failure of the School District of Kinloch to pay said judgment, this mandamus proceeding was brought by relator to compel payment thereof, as heretofore stated.
In their return to the alternative writ of mandamus herein and order to show cause, the respondents below challenged the jurisdiction of Justice Mueller over the subject matter and over the defendants named in the summons issued by said justice; challenged the jurisdiction of Justice Leiweke over the subject matter and over the persons of said defendants on account of the lack of jurisdiction on the part of Justice Mueller; and challenged the jurisdiction of Justice Leiweke over the subject matter on the ground of the lack of any pleading in the case and on the further ground of the insufficiency of the statement (Exhibit A, also referred to as petition) claimed to have been filed in said justice's court.
This mandamus proceeding was tried before Judge Nolte of Division No. 1 of the Circuit Court of St. Louis County and resulted in a finding by him that Walter L. Johnson, Atkis Boyd, J. S. Dorsey, Harvey J. Williams, Thomas S. McCollors and Willie Head, respondents in said proceeding, were the duly elected, qualified and acting members of the Board of Education of the School District of Kinloch; that said school district is what is known as a City or Town School District, and that it was formerly known as School District No. 18 of St. Louis County, Missouri; that relator, Pfitzinger, had, as plaintiff in a suit before Justice Leiweke, obtained a judgment for $203.21 and costs against Kinloch School District which had become final, and demanded payment of judgment but that the same had never been paid; that the School District of Kinloch did not have sufficient funds at that time to pay said judgment or any material part thereof, and that to obtain money to pay the same it was necessary for the School District of Kinloch to levy a tax of five cents on each $100 valuation of the property in said School District.
In pursuance of said finding of facts the Circuit Court ordered and adjudged that a peremptory writ of mandamus issue to each of said respondents directing them to order levied a tax of five cents on each $100 valuation of the assessed property of the School District of Kinloch for the purpose of paying said judgment, interest thereon, and costs, and to file an estimate containing said levy for extension on the tax books of St. Louis County, as provided by law; and, on receipt of said taxes, to pay said judgment.
After an unavailing motion for a new trial of this mandamus proceeding, filed by all the respondents below, the School District of Kinloch alone appealed.
Relator introduced in evidence, in addition to Exhibits A and B, heretofore referred to, the "Prayer for Change of Venue" filed before R. W. Mueller, Justice of the Peace, St. Ferdinand Township, St. Louis County, Missouri, in the cause entitled "Godwin Pfitzinger of Pfitzinger Service Station, Plaintiff, vs. Harvey Williams, Treasurer School District of Kinloch, Defendant." Said prayer for change of venue was sworn to and signed by "John E. Mooney, attorney for Harvey Williams, Treasurer of School District of Kinloch, Defendant." It alleged that Harvey Williams, defendant, could not have a fair and impartial trial before Justice Mueller on account of the bias and prejudice of the inhabitants of St. Ferdinand, Normandy, Bonhomme, Meramec, Lemay and Gravois Townships, and prayed a change of venue to some other justice having jurisdiction thereof.
Relator also introduced in evidence herein the summons issued by Justice Mueller, dated January 2, 1940, directed to the Constable of St. Ferdinand Township, St. Louis County, Missouri, commanding him to summon W. L. Johnson, Atkis Boyd, Dr. J. S. Dorsey, Harvey Williams, Howard English and Willie Head, "members of School District of Kinloch Board," to appear before said justice on January 13, 1940, to answer the complaint of Godwin Pfitzinger of Pfitzinger Service Station "founded upon an action for account, and wherein demand is made for $201.20, interest and costs."
The transcript of Justice Leiweke, which was filed in the Circuit Court of St. Louis County on the appeal from the judgment rendered by said justice, introduced in evidence herein, shows the following: "Summons returned executed as follows: `By on change of venue from Justice or the Peace R. W. Mueller, St. Ferdinand Township.'"
Following the above appears: "School District of Kinloch, formerly District No. 18; Rev. W. L. Johnson, Atkis Boyd, Dr. J. S. Dorsey, Harvey Williams, treasurer; Howard English, director; Willie Head, director."
Then follows a number of entries showing the settings of the cause before Justice Leiweke, and continuances by consent of the parties, after which is the following:
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