Pullum v. Consolidated School Dist. No. 5, Stoddard County
| Citation | 211 S.W.2d 30,357 Mo. 858 |
| Decision Date | 10 May 1948 |
| Docket Number | 40423 |
| Parties | Irma Pullum v. Consolidated School District No. 5, Stoddard County, Missouri, Appellant |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.
Affirmed.
C A. Powell for appellant.
(1) The warrants sued upon are not "writings for the payment of money", and therefore are barred by Section 1014, R.S 1939, the five-year statute of limitations, if the right to sue accrued when the warrants were issued. Sec. 3141, R.S. 1939; Lehner v. Roth, 227 S.W. 833, 211 Mo.App. 1, affirmed 243 S.W. 91, 295 Mo. 174. (2) School warrants are county warrants and therefore, if are not barred by Section 1014, R.S. 1939 (), then the respondent was not entitled to judgment because the petition does not plead that the warrants were presented for payment and the evidence does not show that they were presented for payment within five years after the dates of said warrants. Wilson v. Knox County, 34 S.W. 477, 132 Mo. 387; State ex rel. Frazer v. Holt County Court, 37 S.W. 521, 135 Mo. 533; Secs. 10400, 10470, 13835, R.S. 1939. (3) Since the warrants sued upon in Counts 1, 2, 3, 4 and 7 provide on their faces that they are "payable when notified", there was no fixed time for payment and payment was to be made upon the happening of a contingency or condition to occur in the future, and since no notice was ever given as to the paying of said warrants, the action on said warrants was prematurely instituted and judgment was erroneously rendered in favor of the respondent on all of said counts. Mitchell v. Health Culture Co., 162 S.W.2d 233, 349 Mo. 475; Allen v. Davis, 11 Mo. 479; Ray County Savings Bank v. Porterfield, 70 Mo.App. 573; 8 C.J., p. 411, sec. 607, p. 816, sec., 1075; Jegglin v. Orr, 29 S.W.2d 721, 224 Mo.App. 773; Citizens Bank of Liberty v. Thompson, 132 S.W.2d 700, 234 Mo.App. 448; Heard v. Ritchey, 112 Mo. 516. (4) Since the warrants sued upon are payable only out of such funds as might be in the hands of the treasurer of the district for the payment of teachers (i.e. Teachers' Fund), they are payable out of a special fund only, and the promise to pay is not unconditional. Sec. 3019, R.S. 1939; Mitchell v. Health Culture Co., 162 S.W.2d 233, 349 Mo. 475. (5) Therefore, if funds were not on hand to pay the warrants when this suit was brought, it is premature; and the court erred in rendering judgment for the respondent. Campbell v. Polk County, 49 Mo. 214; Mitchell v. Health Culture Co., 162 S.W.2d 233, 349 Mo. 475; Valleau v. Newton County, 72 Mo. 593; Pettis County v. Kingsbury, 17 Mo. 479; Kingsbury v. Pettis County, 48 Mo. 207; 8 C.J., p. 121, sec. 214, pp. 865-6, sec. 1135, n. 88; Sec. 10366, R.S. 1939. (6) Since Section 10366, R.S. 1939 provides that school warrants shall not bear interest, the court erred in rendering judgment for interest from and after the date of the judgment. Sec. 10366, R.S. 1939; Puller v. Royal Casulty Co., 196 S.W. 755, 271 Mo. 369; Ballard v. Standard Printing Co., 202 S.W.2d 780.
R. Kip Briney and Joe Welborn for respondent.
(1) The warrants sued on herein are barred by the ten-year statute of limitations and not by the five-year statute of limitations. Sec. 1013 R.S. 1939; Aull Savings Bank v. City of Lexington, 74 Mo. 104; Valleau v. Newton County, 81 Mo. 591; Williams v. Missouri Valley Drain. Dist. of Holt County, 186 S.W.2d 209, 238 Mo.App. 1206. (2) A warrant is in effect the promissory note of the governmental agency issuing it. International Bank v. Franklin County, 65 Mo. 105; Steffin v. Long, 165 Mo.App. 254, 147 S.W. 191. (3) The defense that the warrants were not presented for payment within five years of the date of the warrants and that the petition did not plead that the warrants were presented for payment was not raised in the trial court and therefore cannot be raised on this appeal. Laws 1943, p. 353, sec. 140; Sec. 847, R.S. 1939; State ex rel. Rothrum v. Darby, 137 S.W.2d 532, 345 Mo. 1002; Nulsen v. Natl. Pigments & Chemical Co., 145 S.W.2d 410, 346 Mo. 1246. (4) Section 13835, R.S. 1935, relating to the cancellation of county warrants if not presented for payment, does not apply to warrants issued by school districts. Williams v. Missouri Valley Drain Dist. of Holt County, 186 S.W.2d 209, 238 Mo.App. 1206. (5) The notation on the warrants: "Payable when notified" is mere surplusage and can have no effect on the obligation of the school district to pay the warrants. Sec. 10366, R.S. 1939. (6) The inclusion in the warrants of words, other than words prescribed by the statute cannot affect the validity of the warrants or the liability of the school district to pay the warrants. Young v. Camden County, 19 Mo. 309. (7) In an action on warrants, it is no defense that no funds are in the treasury for the payment of such warrants, and further, the petition need not contain an allegation that there are funds in the treasury for the payment of such warrants. International Bank v. Franklin County, 65 Mo. 109; Aull Savs. Bank v. City of Lexington, 74 Mo. 104. (8) Although the warrants are payable out of a particular fund, there can be a judgment payable out of the general fund. Wilson v. Knox County, 132 Mo. 387, 34 S.W. 45, 47. (9) The judgment being a judgment for money should draw interest at the rate of six per cent from the date of the rendering of the judgment. Sec. 3228 R.S. 1939.
Van Osdol, C. Bradley and Dalton, CC., concur.
Appeal from a judgment for plaintiff in an action on warrants issued by defendant-appellant Consolidated School District No. 5, Stoddard County, to plaintiff-respondent for salary as a teacher. In the trial court defendant-appellant sought to interpose a defense that the warrants were invalid under Sections of the statutes relating to the application and expenditure of school moneys, and the apportionment of the public school fund to public schools. Section 9233 and 9257 R.S. 1929, Mo. R.S.A.; and see Section 13, School Law of 1931, Laws of Missouri 1931, p. 340 (). In determining the defendant-appellant's contention of the impropriety of trial court's ruling in striking out the paragraphs of the answer pleading the defense, it is necessary to construe the Sections. We consider the appellate jurisdiction of this court is invoked on the ground the case involves a construction of the revenue laws of this state. Section 3, Article V, Constitution of 1945. Examine and compare State ex rel. Ginger v. Palmer, Mo. App., 194 S.W. 2d 736, case transferred, and reviewed by this court, 198 S.W. 2d 10.
Plaintiff-respondent entered into a contract dated April 19, 1932, in which she undertook to teach in Consolidated School District No. 5 for a term of nine months commencing August 29, 1932, for the salary of $ 86 per month. It is admitted plaintiff-respondent taught and continued to teach during the years including the seven months for which service as teacher seven warrants were issued payable out of any funds for the payment of teachers, as agreed, on which warrants plaintiff has declared in the instant action instituted March 25, 1942.
The trial court found and rendered judgment for plaintiff in the aggregate sum of $ 418.53 and for interest thereon at 6% from the date of the judgment.
Herein upon appeal defendant-appellant School District contends, (1) the action is barred by the five-year limitation period as provided in Section 1014 R.S. 1939, Mo. R.S.A.; (2) but if the action is not barred by the Section 1014 plaintiff-respondent is not entitled to recover, because the warrants were not presented for payment within five years after they were issued as required by Section 13835 R.S. 1939, Mo. R.S.A.; (3) if plaintiff is entitled to recover, the trial court's judgment is erroneous in including interest from the date of the judgment's rendition; (4) the institution of the action was premature on five of the warrants because the five warrants "show upon their face that they were 'payable when notified'" and the evidence shows defendant-appellant has never notified plaintiff-respondent the warrants were payable, and further the action was prematurely instituted because the warrants were payable out of a (special) teachers' fund and (it is asserted) it could not have been shown there are now moneys available in the teachers' fund with which to pay the warrants; (5) the trial court erred in striking paragraphs of the answer which contained the allegations that, because defendant School District did not receive during the years, including the months for which the warrants were issued, the amounts of income anticipated from state aid, the defendant did not have "on hand" when the warrants were issued and does not now have on hand any money derived from revenue for those years to pay the warrants; and (6) since the warrants were issued prior to the time of distribution of such state aid funds as School District had on hand when the instant action was instituted, defendant does not now have and may not...
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