Smith v. Hendricks

• Decision Date: 26 December 1939
• Docket Number: No. 6089.,6089.
• Citation: 136 S.W.2d 449
• Parties: SMITH et al. v. HENDRICKS.
• Court: Missouri Court of Appeals

136 S.W.2d 449

SMITH et al. v. HENDRICKS.

No. 6089.

Springfield Court of Appeals. Missouri.

December 26, 1939.

Appeal from Circuit Court, Lawrence County; Emory E. Smith, Judge.

"Not to be reported in State Reports."

Suit by W. F. Smith and others, taxpayers of the Halltown School District on behalf of themselves and all others similarly situated against H. A. Hendricks to recover on behalf of the school district money allegedly wrongfully paid by the district to the defendant, wherein defendant filed a demurrer. From a judgment for defendant, plaintiffs appeal.

Affirmed.

O. J. Page, of Springfield, for appellants.

R. V. McPherson and Robert Stemmons, both of Mount Vernon, for respondent.

TATLOW, Presiding Judge.

This case was disposed of in the trial court by a final judgment upon a demurrer to the amended petition. The amended petition, which was filed on October 5th, 1938, omitting caption and signatures, is as follows:

"Comes now the plaintiffs, leave of court having first been obtained, file this their first amended petition, and say that during all the times herein mentioned, the Halltown Public School was a `town school district,' situated in the County of Lawrence and State of Missouri, duly organized under the laws of the State of Missouri, with a board of six directors clothed with the power and duty to elect employees of said district in a lawful manner to serve during the school year from July 1st, 1936, until June 30, 1937, and from July 1st, 1937, to June 30th, 1938, and to pay said employees for their services legally rendered, out of the public funds created by taxation on the property of the inhabitants of said district.

"Plaintiffs say that L. O. Johnson, C. B. Nicholson, B. M. Clark, John Hash, Carl Geren, H. A. Hendricks and H. W. Bullard, are the duly elected, qualified and acting members of said board from July 1st, 1936, to June 30th, 1937; and that L. O. Johnson, H. W. Bullard, Harry Pringle, Doss Carter, H. A. Hendricks and John Hash are the duly elected, qualified and acting members of said board of directors from July 1st, 1937, to June 30th, 1938, and that H. W. Bullard until about the first day of August, 1938, was acting as the secretary of said board.

"Plaintiffs say that the said board of directors employed H. A. Hendricks, a member of said board at the time, to drive one of the buses used in the transportation of pupils from and to their homes and the Halltown School District building in Halltown, Missouri, for the school year beginning July 1st, 1936, and ending June 30th, 1937; that H. A. Hendricks, while a member of said board accepted said employment and in full performance thereof drove the bus during said period of time while school was in session and received the sum of $778.52 as compensation therefor, on warrants drawn by the said board of directors out of the funds in the hands of the treasurer of the said Halltown School District, created by taxes collected from the plaintiffs in this action and other taxpayers similarly situated, whom they represent.

"Plaintiffs say that said contract was illegal and void from the beginning and in violation of Section 9360 of the Revised Statutes, 1929, Mo.St.Ann. § 9360, p. 7210, and that all members of said board including the defendant knew or were legally presumed to know that said contract was openly and notoriously made and carried out in violation of the laws of the State of Missouri.

"Plaintiffs say that all the members of the school board except H. A. Hendricks, defendant, at all times neglected and refused to lend any aid or assistance to the taxpayers of said school district to recover the moneys so paid out to defendant by the members of said school board for the illegal services of defendant so rendered under said employment and for which he received compensation under the terms thereof.

"Plaintiffs say that during all the times herein mentioned, M. Stanley Ginn, was the duly elected, qualified and acting prosecuting attorney of Lawrence County, Missouri, and that during all of the times herein mentioned, he has neglected, and refused to lend his aid and assistance and use of his official name and title for and on behalf of the taxpayers of said district to recover the said sum so illegally paid to and received by the defendant, H. A. Hendricks, under the terms and provisions of his employment.

"Plaintiffs say that W. F. Smith, H. W. Garoutte, J. E. Owens, W. J. Cameron, Lloyd Richards, L. B. Owens, T. S. Jones, J. M. Owens, Jerry Owens, J. W. Kirk, John A. Stewart, J. O. Wilkerson, I. J. Bennett, and W. F. Nichols, during all of the times herein mentioned were residents, citizens, taxpayers and voters of the Halltown School District, and that they appear in said action as plaintiffs not only for themselves but for and on behalf of all others in said district similarly situated for the reasons herein stated and that unless the said taxpayers be permitted to sue for and on behalf of themselves as taxpayers in said district and for all other taxpayers so similarly situated, they will be left without any legal representative to sue for and on behalf of the taxpayers of the district as parties plaintiff and be made to suffer irreparable damages occasioned by the increase of taxation upon the assessed value of their property in order to pay the said sum of money on an illegal and void contract.

"Plaintiffs say that defendant has refused and neglected to repay said money into the treasury of the said Halltown School District, although demand has been made upon him by plaintiffs and other interested parties to do so; and, that the said sum of money thus unlawfully collected and retained by him, he now owes to the treasury of the said Halltown School District, in the sum of $778.52, after allowing all just credits thereon, with interest at the rate of 6 per cent per annum during the period of time he has unlawfully had said money in his possession and to his use, plaintiffs having no adequate remedy in law seek relief in equity.

"Wherefore, plaintiffs pray that a judgment in favor of the Halltown School District be entered against said defendant in the sum of $778.52 and accrued interest thereon and that he be directed to pay said sum into the treasury; for costs herein expended; and, that execution may be issued therefor."

The demurrer thereto is as follows:

"Comes now the defendant and demurs to plaintiffs' amended petition filed in this cause for the following reasons:

"1. That said petition does not state facts sufficient to constitute a cause of action.

"2. That it appears on the face of said petition that the plaintiffs are not the real parties in interest and have not the legal capacity to sue on the cause of action attempted to be alleged in said petition."

The respondent has filed an additional abstract setting forth the original petition in the case.

The main difference between the two petitions in that the amended petition alleges "that all of the members of the school board (except H. A. Hendricks, defendant), at all times refused to lend any aid or assistance to the taxpayers of said school district to recover the money so paid out to the defendant by the members of said school board for the alleged services of said defendant so rendered under said employment and for which he received compensation under the terms thereof".

The original petition alleges that the defendant has refused and neglected to repay the treasury of said Halltown School District the said sum of money unlawfully collected and retained by him, and that he now owes the treasury of the school district, for and on behalf of the taxpayers thereof, the sum of $778.52, after allowing all charges, credits and setoffs in favor of the defendant.

The respondent contends that this is an action at law "although sounding in equity", because it seeks only a money judgment for the recovery of an alleged debt. A court of equity in a purely equitable proceeding undoubtedly has the power to render a decree for a money judgment where it would afford proper relief.

The fact that only a money judgment is prayed for is not an infallible test to determine that the action is at law and not in equity, although it is usually sufficient to do so.

The present action is brought by the appellants as taxpayers of the district on behalf of themselves and all others similarly situated, seeking to recover a judgment against the respondent, not for themselves, but for the school district, for moneys wrongfully paid to the respondent, because the district had refused to bring an action to recover the moneys wrongfully disbursed. It is necessarily a class action because, as stated, it is brought, not to recover for themselves, but for the school district, and each and every taxpayer in the district has exactly the same interest, if any, as the appellants, in having the moneys wrongfully disbursed, returned to the treasury. If the petition states any cause of action it is clearly in equity and not at law.

We think that this conclusion is sustained by the case of Wiehtuechter et al. v. Miller et al., 276 Mo. 322, loc. cit. 330, 208 S.W. 39, loc. cit. 41, cited and relied upon by the respondent, where it is said: "This being an action at law, the suit could not be brought by plaintiffs for themselves, and all other persons similarly situated, as might be done in equity."

That was plainly an action at law, in which the plaintiffs sought to bring a suit, not only on behalf of themselves, but on behalf of all other persons similarly situated, and the court, of course, held that this could only be done in an action in equity.

That is not the situation in the instant case. The relief sought by the appellants in the instant case is not for themselves, but for the district, and if these appellants have any right to bring the suit it must necessarily be brought primarily for the benefit of the district and secondarily for the equal benefit of all of the...