Smith v. Berryman
| Decision Date | 08 April 1913 |
| Citation | 156 S.W. 40,173 Mo. App. 148 |
| Parties | SMITH v. BERRYMAN et al. |
| Court | Missouri Court of Appeals |
Rev. St. 1909, § 2551, provides that in case a verdict be found for the person suing out a writ of mandamus, or judgment be given for him on demurrer, or by nil dicit, or for want of replication or other pleading, he shall recover his damages and costs, "in such manner as he might do in a civil action for a false return," and the same may be levied by execution. Section 2554 provides that, if any damages be recovered under the article against any person making return to such writ, he shall not be liable to be sued in any other action for making such return; and section 2549 provides that such further proceedings shall be had in a mandamus proceeding, upon reply or demurrer, etc., "and in such manner as might be had if the person suing out such writ had brought a civil action for false return. Held that, where the return was only challenged by a motion for judgment on the petition and return, which operated as a demurrer to the legal sufficiency of the return, damages could not be recovered under the statute by the person suing out the writ.
2. PLEADING (§ 189)—"PLEA"—"PLEADING" —"DEMURRER."
A "plea" or "pleading" is not the same as a "demurrer," which implies merely a refusal to plead.
For other definitions, see Words and Phrases, vol. 2. pp. 1982-1985; vol. 6, pp. 5405, 5406, 5409-5411; vol. 8, p. 7756.]
3. ELECTION OF REMEDIES (§ 3)—ALTERNATIVE REMEDIES—NONPERFORMANCE OF DUTY.
One who resorted to mandamus to compel the officers to discharge a ministerial official duty thereby lost his right of action against them for failure to perform such duty.
Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.
Action by William A. Smith against John W. Berryman and others. From a judgment for plaintiff, defendants appeal. Reversed, and case certified to the Supreme Court.
Poplar Bluff, in Butler county, this state, is a city of the third class. Plaintiff, respondent here, filed an application and petition in the office of the city clerk, for a license to conduct a dramshop in a building on a certain lot in that city. Later the county court of Butler county granted plaintiff a license to keep a dramshop. Plaintiff thereupon paid to the city the amount required by the city ordinance for a dramshop license. Plaintiff's petition being presented to the city council, that body refused the license.
The governing body of cities of the third class is composed of the mayor and members of the council, the mayor being ex officio president. R. S. 1909, § 9149.
Plaintiff, claiming that on presentation of this license from the county court and payment of the license tax, he was entitled to open and conduct a saloon in Poplar Bluff, and that the city council had no authority to refuse him, and that their duty in the premises was merely ministerial, on the refusal of the city council to permit him to open a dramshop, petitioned the Springfield Court of Appeals, within the jurisdiction of which court Butler county is situate, for a writ of mandamus commanding the city council to set aside the order refusing him a license to conduct a dramshop and to grant an order issuing to him a license to keep a dramshop at the place mentioned for a period of six months. An alternative writ of mandamus was issued by the Springfield Court of Appeals, directed to the mayor and council of the city. The mayor and council made return to the alternative writ, justifying their refusal under the city ordinance, the return also setting out that the petition for the dramshop did not purport to be signed by two-thirds majority of the assessed, tax paying citizens and guardians of minors owning property in the square where the dramshop was desired, and that the relator had not brought himself under the provisions of the city ordinances, further setting up that the place at which it was proposed to open the dramshop was not a permanent building and that the city had enacted an ordinance defining fire limits within the corporation and that the place selected and designated by relator for the purpose of carrying on his proposed dramshop was within these fire limits and that the city council had passed an ordinance ordering the removal of the building as being a nuisance. On the cause coming up for hearing in the Springfield Court of Appeals, trial on the issues of fact was avoided by an agreement that the relator was a law abiding, assessed, tax paying citizen of Butler county but not of Poplar Bluff; that his petition presented to the city council contained the names of two-thirds majority of the assessed, tax paying citizens, including guardians of minors owning property in the square where the dramshop license was desired. This left the case on an issue of law, the relator raising that by a motion for peremptory mandamus, notwithstanding the return. The cause being heard by the Springfield Court of Appeals on the petition, return and motion for judgment on that return, the court made the alternative writ final, issuing a peremptory mandamus as prayed. The opinion of the Springfield Court of Appeals will be found under the title State ex rel. Smith v. Berryman et al., 142 Mo. App. 373, 127 S. W. 129.
In obedience to the command of the peremptory writ of mandamus, the mayor and city council of Poplar Bluff issued the license to the relator.
By reference to the report of the case of State ex rel. Smith v. Berryman et al., supra, it will be seen that the Springfield Court of Appeals held, on the authority of City of St. Louis v. Boatmen's Ins. & Trust Co., 47 Mo. 150, City of St. Charles v. Elsner, 155 Mo. 671, 56 S. W. 291, and other authorities cited, that the sections of the city ordinances relied upon by respondent were in conflict with section 9253, R. S. 1909, which prescribes the powers of the city council of cities of the third class, and that when the county court had issued the license and relator had tendered the license fee, it was the duty of the city council to issue the license; that that body had no power to deny or refuse it and that its duty in connection with the matter was purely ministerial and not judicial.
On the conclusion of proceedings under and incident to the mandamus, the relator in that proceeding commenced the present action against the mayor and city council of Poplar Bluff. Charging that the acts of the mayor and council, in refusing the license, were unlawful and oppressive and that by reason of plaintiff being required to resort to the mandamus proceeding to compel performance of a ministerial duty, he had been forced to pay and to obligate himself to pay, and that he did pay and obligate himself to pay, large sums of money to attorneys for their services in and about the prosecution of the mandamus proceeding, that he was compelled to pay and did pay large sums of money in his own traveling expenses as well as those of his attorneys in looking after and prosecuting those proceedings; that he was compelled to pay and did pay, large sums of money for stenographer's fees for services in preparing papers and briefs and other documents to be used in the prosecution of those proceedings, and to pay large sums for telephone messages and telegrams in and about the prosecution of that proceeding, and to pay docket fees and other court costs, and to pay large sums for the printing of briefs, records and other documents to be used in and about the prosecution of the mandamus, and had paid out large sums of money for express charges on briefs and other documents and was compelled to pay and did pay large sums of money to various persons for clerical work in preparing records and documents, and that he was greatly damaged in his business and reputation as a dramshop keeper, and that he lost large sums of money by reason of loss of patronage, in this as well as other dramshops owned by plaintiff, which loss, it is averred, was occasioned by his having to resort to legal process to compel the performance of the duties of defendants as mayor and members of the city council, as before set forth, all of which items of expense and damage were, as he alleges, in the sum of $5,000, and all occasioned by the unlawful, illegal and oppressive acts of defendants, as mayor and members of the city council, plaintiff prays judgment for this amount as also for the further sum of $10,000, as punitive or exemplary damages, and for his costs.
It is as well to notice here that there was a motion to strike out portions of the petition, which was overruled, defendants excepting. Filing an answer, defendants, after a general denial, pleading that there was a misjoinder of defendants and nonjoinder of parties defendant; that the mayor, John W. Berryman, was not a proper party to the suit; that the councilmen had acted in good faith in refusing to grant a license to plaintiff for the reason that at the time of his application there was a bill pending before the council to condemn the building. It is further set up in the answer that plaintiff is precluded and estopped from claiming any damages by reason of the mandamus proceeding instituted and prosecuted by him to a final determination in the Springfield Court of Appeals, which judgment in the mandamus proceeding is pleaded in bar of all claims for damages on the part of plaintiff.
A reply in the nature of a general denial was filed to this answer.
At the trial plaintiff abandoned his claim for punitive damages, the evidence introduced by plaintiff, aside from putting in evidence the mandamus proceedings, being confined to the reasonable value of the expenditures mentioned, all testimony as to these items of damage being introduced over the objection of defendants that none of them were proper items of damage in this proceeding, and under the objection of defendants to any evidence on the ground that the petition did not state any cause of...
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