State at Information of Dalton ex rel. Tucker v. Mattingly

• Decision Date: 25 January 1955
• Docket Number: No. 7361,7361
• Citation: 275 S.W.2d 34
• Parties: The STATE of Missouri, at the Information of John DALTON, Attorney General of the State of Missouri, at the Relation of J. L. TUCKER, George Cox, Vern Erwin, C. A. Hopkins, W. M. Allen, C. C. Kelso, C. C. Weatherly, C. H. Lewis, Sr., C. H. Lewis, Jr., W. D. Cameron, J. L. Fluty, Monroe Luckey, Walter Northcutt, Roy Stapleton, Ethel Griffeth and Jim Hongate, Appellants, v. Walter MATTINGLY, Rufus Barnhouse, Olin Antle and O. P. Murphy, Respondents.
• Court: Missouri Court of Appeals

Page 34

275 S.W.2d 34

The STATE of Missouri, at the Information of John DALTON Attorney General of the State of Missouri, at the Relation of J. L. TUCKER, George Cox, Vern Erwin, C. A. Hopkins, W M. Allen, C. C. Kelso, C. C. Weatherly, C. H. Lewis, Sr., C H. Lewis, Jr., W. D. Cameron, J. L. Fluty, Monroe Luckey Walter Northcutt, Roy Stapleton, Ethel Griffeth and Jim Hongate, Appellants, v. Walter MATTINGLY, Rufus Barnhouse, Olin Antle and O. P. Murphy, Respondents.

No. 7361.

Springfield Court of Appeals, Missouri.

Jan. 25, 1955.

Sater & Monroe, Monett, for appellants.

M. J. McQueen, Royle Ellis and Emory Melton, Cassville, for respondents.

RUARK, Judge.

This case, here by reason of transfer from the Supreme Court, 268 S.W.2d 868, is a quo warranto brought on the information of the Attorney General at the relation of certain taxpaying residents of the town of Exeter against certain other persons then functioning as aldermen of city.

On the 31st day of December, 1946, the County Court of Barry County incorporated Exeter, Missouri, as a city of the fourth class. Thereafter the city organized its government, held elections, selected its officers and proceeded to function as a body politic. On May 9, 1950, at a special election, a bond issue for a municipal waterworks system was authorized. Thereafter J. L. Tucker and other citizens filed an action in the Circuit Court of Barry County against the mayor and board of altermen of said city for a judgment declaring that the incorporation of Exeter as a city of the fourth class was void because of the various reasons alleged therein and, on such theory, that the city was not an entity; that the defendants had no right or authority to function as officers of the city; and that all of the elections, ordinances, levies, collection of taxes and disbursement of funds were void. The prayer concluded with a request that the defendants be ousted and enjoined from attempting to function as officers. Defendants first moved to dismiss the petition because the suit was brought by parties having no legal capacity to sue and because the petition failed to state a cause of action. Said motion to dismiss having been overruled, the case went to trial on defendants' answer and plaintiffs' reply. The judgment rendered was a general finding of the issues in favor of the defendants and that the plaintiffs take nothing by their petition but that the same be dismissed. On the same day the trial court filed its memorandum entitled 'Statement of Court's Findings and Reasons for Decision.' After the filing of motion for new trial plaintiffs appealed to the Supreme Court. On the 9th day of January, 1953, the appeal was dismissed because prematurely taken Tucker v. Miller, 363 Mo. 820, 253 S.W.2d 821.

Thereafter and on the 2nd day of March, 1953, the present suit was instituted by the filing of information in the nature of quo warranto, viz. The State of Missouri, at the information of John Dalton, Attorney General of the State of Missouri, at the relation of certain named persons who were, with two exceptions, the same persons who had been plaintiffs in the previous suit. The respondents were the incumbent aldermen of the city of Exeter (a vacancy being said to exist in the office of mayor.) This pleading, although not in exact language, made substantially the same attack upon the original incorporation of the city of Exeter and assigned substantially the same various grounds therefor as had been set up in the first suit. It alleged defendants were usurping rights as officers of a city of the fourth class and concluded with a prayer that the court adjudge the defendants have no right or title to the offices, that the court find them to be usurping the same and that they be ousted therefrom. Thereafter two of the persons named as relators filed their motions alleging they had not authorized the use of their names and requested the court to strike their names as parties. On March 16, 1953, the respondents filed motion to dismiss wherein they alleged that the relators were identical with those who had filed the previous action heretofore mentioned; that all issues raised by the present petition had been raised in the former suit, where the defendants had filed motion to dismiss and (then) took the position that plaintiffs did not have the right to maintain such suit and that the same could be maintained only by the Attorney General of the State of Missouri; that in the former suit the plaintiffs' attorneys had taken the position that such plaintiffs (relators here) were proper parties plaintiff and that it was not necessary that the State of Missouri or the Attorney General be made a party plaintiff; that the former suit was tried to the court and judgment was rendered in favor of the defendants and against the plaintiffs, which judgment necessarily disposed of all issues raised in the former petition; that such judgment was appealed, that the appeal was dismissed and thereafter the judgment of the circuit court became final and res judicata of all the issues in the present petition.

The motion further pleaded that the petition showed on its face that the city of Exeter was incorporated on December 31, 1946, more than six years prior to the filing of the instant suit, that there is no averment in the petition showing equity in favor of the state, and such petition should be dismissed for laches.

At a hearing on said motion the respondents offered in evidence the appellants' transcript on appeal with exhibits and the printed briefs of the parties in the former case of Tucker v. Miller. Thereafter on August 28, 1953, the trial court sustained the motion to dismiss and ordered the cause dismissed. Motion for new trial was filed and overruled and relators appealed from the judgment.

A parenthetical statement may help in understanding the situation:

It had been held by our Supreme Court that the incorporation of a city by the county court was a judicial act and therefore could not be attacked in collateral proceedings. On January 7, 1949, the Supreme Court rendered its opinion of Rippeto v. Thompson, 358 Mo. 721, 216 S.W.2d 505, which plaintiffs interpreted as holding that, under the constitution of 1945, V.A.M.S., the county court had lost all power to make determinations which were judicial in their nature; hence, by plaintiffs' interpretation, the county court could not make the determinations necessary to organize a city, the city was therefore not a corporation, either de jure or de facto, and suit could be maintained by individual parties. However, on the 9th day of July, 1951, shortly before the Tucker case was submitted, the Supreme Court decided the case of In re City of Kinloch, 362 Mo. 434, 242 S.W.2d 59, which case had to do with the disincorporation of a fourth class city, and which held that a county court has jurisdiction to order the disincorporation of such city and that the powers so exercised were as legislative agent to hear and determine necessary facts and not an exercise of judicial power in the jurisdical sense.

Returning to the former case of Tucker v. Miller, which is the subject of the plea of res judicata, it appears obvious from the separate memorandum of the trial court that its finding and judgment was based solely upon the ground that the validity of the existence of a political subdivision can be questioned only by the state itself in a quo warranto proceeding. The court in this memorandum, after referring to the Kinloch case, stated that it 'resolved this knotty question, at least by way of dictum. * * * In view of the foregoing decision, this Court finds the issues for the defendants in this cause.' No other grounds or reasons were referred to in such findings and reasons.

The corporate existence of a municipal or public corporation, in the de jure or de facto exercise of its corporate life, must be challenged by the state itself in an information in the nature of quo warranto, and a suit by individuals is a collateral attack which cannot be countenanced. Spiking School District No. 71 De Kalb County v. Purported 'Enlarged School District, etc.,' 362 Mo. 848, 245 S.W.2d 13; State ex rel. Le Shure v. O'Hern, Mo.App., 149 S.W.2d 914; State ex inf. Dorian ex rel. Black v. Taylor, 208 Mo. 442, 106 S.W. 1023.

But it is urged by the respondents that the Attorney General is a mere nominal party to the action, is not a real party in interest and that the addition of a formal party does not change its substance and, there having been a general finding on the issues in the former case, such is res judicata as to all of such issues.

We are first confronted with the question as to whether or not we may consider the trial court's statement of findings and reasons for decision along with its judgment making a general finding on the issues. Respondents say that we may not, and quote from Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, loc. cit. 285, to the effect, 'The rule is settled in this state that a memorandum opinion of the trial court is merely advisory * * * and does not constitute any part of the record proper.' But that same court, and on the same page, continued its discussion as follows, 'But in a suit for a declaratory judgment, as is this one, is it not the purpose of the suit to obtain from the court a declaration of the parties' right? A mere judgment entry ordinarily cannot be responsive to the relief prayed for. It is not sufficient here.' That court, in reviewing the judgment below, did not consider the memorandum.

Sec. 510.310 subd. 2, (*) provides, among other things, that in cases tried upon the facts without a jury, if any party shall so request, the court shall dictate or file a brief opinion containing a statement of the grounds for its decision, and may, or if specifically requested by counsel, shall, include its findings on any of the principal controverted fact issues. Subdivision 4 of the section provides that no...