Powell v. City of Joplin

• Citation: 73 S.W.2d 408,335 Mo. 562
• Decision Date: 19 June 1934
• Docket Number: 32636
• Parties: F. J. Powell, R. R. Ristine and Newton County, Appellants, v. City of Joplin
• Court: United States State Supreme Court of Missouri

73 S.W.2d 408

335 Mo. 562

F. J. Powell, R. R. Ristine and Newton County, Appellants, v. City of Joplin

No. 32636

Supreme Court of Missouri

June 19, 1934

Appellants' Motion for Rehearing Overruled June 19, 1934.

Appeal from Newton Circuit Court; Hon. C.H. Skinker, Judge.

Affirmed.

Foulke & Foulke, Leo Johnson and Leslie D. Rice for appellant.

(1) This being an equitable proceeding, the court will review the entire record and render such judgment as in equity and good judgment the pleadings and evidence may authorize. Henson v. Savings & Loan Assn., 300 S.W. 1037; Canty v Halpin, 244 Mo. 118, 242 S.W. 97. (2) This cause is properly before the Supreme Court because the construction of the Constitution of the United States and of the State of Missouri are involved and because a county is a party. Const of Mo., Art. VI, Sec. 12. (3) That part of defendant's answer alleging that plaintiffs were estopped by judgment from bringing their action should have been stricken on plaintiff's motion.

R. A. Pearson for respondent.

(1) And though the judgment is rendered on demurrer and the cause dismissed, it is res adjudicata where the demurrer strikes at the merits as pleaded, and though it be decided on matters of law solely. Johnson v. Ry. Co., 243 Mo. 290; Berry v. Milling Co., 240 S.W. 829; Custer v. Kroeger, 280 S.W. 1035. (2) And a former judgment is conclusive, not only as to issues which were tried, but as to every issue which the parties could have alleged to sustain their cause, whether they were alleged or not. A party cannot split his cause of action and vex his adversary piecemeal and thus prolong the litigation. Consol. School Dist. v. Day, 43 S.W.2d 430; Custer v. Kroeger, 280 S.W. 1037; Williams v. City of Hayti, 184 S.W. 473; 34 C. J. 860, secs. 1269, 1273; Berry v. Milling Co., 240 S.W. 829; Bocinski v. Krzeminski, 234 N.W. 103; Vinson v. Graham, 44 F.2d 772; Citizens Bank v. Gatewood, 36 S.W.2d 426; Pond v. Huling, 125 Mo. 474. (3) Privity or parties is something different from identity of persons. A party may be such by representation, and a judgment for a municipal corporation at the suit of one citizen or taxpayer on a matter of general or public interest is binding and conclusive against all other citizens or taxpayers. 34 C. J. 1028, sec. 1459; Freeman on Judgments (3 Ed.), sec. 178; Harmon v. Auditor, 5 Am. St. Rep. 502, 123 Ill. 122; State ex rel. v. Rainey, 74 Mo. 229; Town of Tallase v. State ex rel. Brunson, 89 So. 514; State v. Cottrell, 23 S.W. 518; Aston v. Rochester, 28 Am. St. Rep. 619, 123 N.Y. 187; Floersheim v. County, 212 P. 451; Pear v. City, 113 N.E. 60, 49 A. L. R. (N. S.) 108, 20 L. R. A. 113; Eaton v. Board, 114 N.C. 689; Bear v. Board, 65 Am. St. Rep. 711.

OPINION

Fitzsimmons, C.

Plaintiffs appeal from a judgment of the Circuit Court of Newton County, denying relief and dismissing their bill to restrain and enjoin defendant the city of Joplin, its officers, agents and servants, from exercising municipal authority in section 22, and the west half of section 23, township 27, range 33 of Newton County. The city of Joplin by its old limits was situated wholly in Jasper County. But it assumed jurisdiction in 1929 over the adjacent section 22 and the west half of section 23 in Newton County under authority of Ordinance No. 15162 with the consent of the legal voters of the city, extending the municipal boundaries so as to include the adjacent Newton County land and also certain other adjacent land in Jasper County. Joplin is a city of the second class and it made the annexations of 1929 under the provisions of Section 6483, Revised Statutes 1929 (8 Mo. Stat. Ann., p. 5476).

This is the latest of several cases which have presented to the appellate courts the question of the validity of the Joplin annexation proceedings of 1929. The most recent decision was by this court in the case of State ex inf. Mallett ex rel. Womack et al. v. The City of Joplin, 332 Mo. 1193, 62 S.W.2d 393. This was an appeal by the city from a judgment of the Circuit Court of Jasper County in a quo warranto action ousting the city from jurisdiction over the Jasper County land annexed in 1929. The appeal in the quo warranto action went to the Springfield Court of Appeals which by its majority opinion reversed the judgment of ouster. But upon the request of a dissenting judge, the Springfield Court of Appeals transferred the appeal to this court. Our decision also sustained the validity of the annexation proceedings with respect to the Jasper County land, and we accordingly reversed the trial court's judgment of ouster. [332 Mo. 1193, 62 S.W.2d 393.] Reference is made to a plat of the city of Joplin, showing the annexations of 1929, including section 22 and the west half of section 23 in Newton County, which is the land involved in this appeal. The plat is published as part of the opinion of this court in the quo warranto case in 332 Mo. 1193, 62 S.W.2d at page 394.

The validity of the annexation proceedings as to the Newton County land which is involved in this appeal was brought into question in the case of Schildnecht v. City of Joplin, 327 Mo. 126, 35 S.W.2d 35, and (same case, Mo. App.), 41 S.W.2d 590. The Schildnecht case was an injunction suit in the Circuit Court of Jasper County, to enjoin the exercise by the city of Joplin of municipal authority over the Newton County land. The trial court sustained a demurrer to the bill. The plaintiffs having declined to plead further the court gave final judgment for the defendants. Schildnecht and his coplaintiffs appealed to this court, which held that it was without jurisdiction (327 Mo. 126, 35 S.W.2d 35) and transferred the case to the Springfield Court of Appeals. The latter court affirmed the judgment of the Jasper County Circuit Court in favor of the city of Joplin and the other defendants.

I. Plaintiffs assign error to the action of the trial court in permitting defendant, city of Joplin, to plead and also to offer record evidence in proof of the defense of estoppel by the judgment in the Schildnecht case, supra. The answer of defendants in the instant case set up that the judgment of the Circuit Court of Jasper County in the Schildnecht case upheld the lawfulness and validity of the extension ordinance as to the Newton County land annexed and that plaintiffs here, as citizens, property owners and taxpayers, in the annexed portion of Newton County, in common with the plaintiffs in the Schildnecht case and by mutuality of interest, by representation in the same subject, cause of action and issues, and by reason of a common public interest, were estopped by the Schildnecht judgment from instituting or maintaining this action.

Plaintiffs contend that the judgment in the Schildnecht case is not a bar to their action because the issues in both suits are not the same and the parties are not identical. In support of this proposition, they cite Missouri, Kansas & Texas Railway Co. v. American Surety Co., 291 Mo. 92, 236 S.W. 657; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629. The Missouri, Kansas & Texas case does state the rule to be that, for the successful interposition of the defense of res adjudicata there is necessary identity of the thing sued for, of cause of action and of parties.

The plaintiffs in the Schildnecht case and in this one are not identical. In fact no plaintiff in either case is a party to the other. But the plaintiffs in each case sued as resident taxpaying citizens of the annexed Newton County land. In the Schildnecht case, by inference, in the instant case in express terms the plaintiffs pleaded that the purpose of the suit was to avoid a multiplicity of actions. And both suits were prosecuted on behalf of the plaintiffs and of all other persons similarly situated, that is residents of the Newton County land, for all of whom each bill prayed relief. Plaintiffs, F. J. Powell and R. R. Ristine in the present suit were resident taxpayers in the annexed Newton County land when the Schildnecht case was commenced and while it was being prosecuted. Newton County, which upon its motion was made a party plaintiff in this suit as an owner in fee simple of land in the annexed territory, was such owner while the Schildnecht case was in course of litigation. The defendants in the Schildnecht case were the city of Joplin, its mayor, commissioners, clerk and chief of police. The sole defendant in the instant case is the city of Joplin.

Both actions were suits in equity to enjoin the enforcement of the extension ordinance in the annexed part of Newton County and to restrain the officers of Joplin from enforcing in that territory the laws, ordinances and regulations of Joplin and from molesting or interfering with any of the residents of Newton County. The main issue raised by each bill was whether so much of the extension ordinance as attempted to annex the Newton County land was void and whether the officials of the defendant city, by their exercise of authority in Newton County, were trespassers. In the Schildnecht case, the plaintiffs, by their petition, caused the main issue to turn upon the question whether Section 6483, Revised Statutes 1929, under which the annexation ordinance was enacted and ratified, authorized a city of the second class to annex adjacent land in an adjoining county. The trial court, by sustaining a demurrer to the petition in the Schildnecht case and by giving final judgment upon that demurrer, when plaintiffs refused to plead further, decided the issue in favor of the defendant city.

In the instant case, the plaintiffs by their amended petition presented the main issue by charging: First, -- that the extension ordinance insofar as it concerns the Newton County land, is unconscionable, oppressive,...