State ex Inf. Voigts ex rel. Mayor, Council and Citizens of Liberty v. City of Pleasant Valley

• Decision Date: 06 April 1970
• Docket Number: No. 25363,25363
• Citation: 453 S.W.2d 700
• Parties: STATE ex inf. Gene E. VOIGTS, Prosecuting Attorney, ex rel. MAYOR, COUNCIL AND CITIZENS OF LIBERTY, Missouri, Respondent, v. The CITY OF PLEASANT VALLEY, Missouri, Appellant.
• Court: Missouri Court of Appeals

Page 700

453 S.W.2d 700

STATE ex inf. Gene E. VOIGTS, Prosecuting Attorney, ex rel MAYOR, COUNCIL AND CITIZENS OF LIBERTY, Missouri, Respondent, v. The CITY OF PLEASANT VALLEY, Missouri, Appellant.

No. 25363.

Kansas City Court of Appeals, Missouri.

April 6, 1970.

Howard D. Lay, Donaldson & Lay, Kansas City, for appellant.

Don M. Jackson, Kansas City, for respondent.

SHANGLER, Presiding Judge.

The City of Pleasant Valley appeals from a judgment of the circuit court ousting it, by writ of quo warranto, from proceeding further with its attempted annexation of certain territory in Clay County also claimed by relator City of Liberty.

The dispute involves the annexation of two distinct land areas. What we refer to as 'Tract 1' is that land in contention which lies in Sections 22 and 23, and 'Tract 2' is the land in Sections 13, 25, 26 and 27, all in Township 51 North, Range 32 West.

The ouster proceedings which we now review were precipitated by these events: On May 7, 1968, appellant City of Pleasant Valley enacted (amending) annexation Ordinance No. 456 whereby it undertook to extend its corporate boundaries to include both Tracts 1 and 2. Its declaratory judgment suit for approval of the annexation followed two days later. It was these actions, found to be usurpations of the City of Liberty's prior rights of annexation, from which the City of Pleasant Valley was ousted.

The judgment of ouster which ultimately issued was grounded upon an Information which alleged that a portion of the territory sought to be annexed by appellant City of Pleasant Valley (Tract 1) had already been effectively annexed by relator City of Liberty as of January 1, 1965. As to the balance of the territory in dispute (Tract 2), it was alleged that the City of Liberty had priority of annexation by virtue of its enactment of an annexation ordinance and the filing of a declaratory judgment suit to effectuate it by May 1, 1968, all before the City of Pleasant Valley had enacted its annexation ordinance. The right to ouster was declared as a matter of law on the basis of the pleadings and exhibits. No evidence was presented, but no dispute as to the facts appears from the record and briefs.

Appellant's pleadings consist of an Answer and what it has denominated a 'Counterclaim'. Among those issues tendered by the Answer are two asserted upon this appeal. They relate to the alleged invalidity of relator's annexation of Tract 1 on the ground that the declaratory judgment entered in furtherance of the annexation of January 1, 1965 was void on its face as it reflects it was not entered consequent to a class action as required by Sec. 71.015, V.A.M.S. The Answer tendered the defenses, urged again upon this appeal, that as to its efforts to annex Tract 2, relator has been guilty of laches and is, moreover, estopped from either questioning appellant's right to annex or from claiming any priority to do so on its own behalf. Appellant pleaded, and now contends, that as to Tract 2, relator's attempts at annexation since 1952 were finally determined by this court in 1968 (Julian v. City of Liberty, Mo.App., 427 S.W.2d 300) to have been invalid. Yet, during that period, appellant's own efforts at annexation of Tract 2, in 1963, were thwarted by injunction issued on the premise of the validity, and therefore priority, of the relator's then pending proceedings.

What role appellant City of Pleasant Valley intended for its 'Counterclaim' is not at all clear. Appellant has put together a number of averments challenging relator's municipal authority to claim Tracts 1 and 2 by annexation (an issue already raised in its Answer) and dubs it a 'Counterclaim for Quo Warranto'. Yet, it is ineffectual as an information in the nature of a Quo Warranto because by the provisions of Sec. 531.010, V.A.M.S. and Civil Rule 98.01, V.A.M.R., the writ can issue only after the information has been exhibited by the Attorney General of this state or the prosecuting attorney of the county. This jurisdictional requirement has not been met. State ex inf. Dorian ex rel. Black v. Taylor, 208 Mo. 442, 106 S.W. 1023, 1026; State at Information of Dalton ex rel. Tucker v. Mattingly, Mo.App., 275 S.W.2d 34, 39. When the allegations going to the Quo Warranto have been discarded, what remain are reiterations of the two defenses previously described and upon which appellant relies to deny relator's claim to priority of annexation.

From the reticule of events described in the pleadings and exhibits which accompany them, these undisputed facts emerge as those which underly the contending claims of the municipalities to priority of annexation to the two land areas.

The City of Liberty's Efforts to Annex Tract 1: On June 22, 1963 the City Council of Liberty adopted a resolution declaring its intent to annex that area and directing the filing of a declaratory judgment action in the circuit court to determine the reasonableness of the proposed annexation as required by the Sawyers Act, Sec. 71.015, V.A.M.S. On November 1, 1963, the court entered its judgment declaring the annexation reasonable. (It is this judgment appellant now impugns in its Answer and brief as void on its face because lacking 'any class action findings'.) By ordinance enacted on the date judgment was entered, the annexation was made to become effective January 1, 1965. Tract 1 has been treated as part of the City of Liberty since that date.

The City of Liberty's Efforts to Annex Tract 2: On September 23, 1952, the City of Liberty adopted Ordinance No. 1749 for the annexation of Tract 2. Successive ordinances were adopted thereafter which had the effect, merely of postponing the annexation until January 1, 1964. When Ordinance No. 1749 was adopted, the Sawyears Act, Sec. 71.015, V.A.M.S., requiring a circuit court declaratory judgment authorizing such annexations, had not yet been enacted. The City of Liberty made no effort to comply with the Act, however, even though it had successively postponed the effective date of the annexation long after the Sawyers Act became operative in 1953. On April 1, 1968, in Julian v. City of Liberty, supra, we invalidated the attempted annexation of Tract 2 for failure to comply with the Act. On that very day, Liberty enacted another Ordinance, No. 2750, for the annexation of Tract 2, amended it on April 23, 1968 and filed its declaratory judgment action as required by the Sawyers Act on May 1, 1968. It is by virtue of these actions that the relator claims priority to Tract 2 over the appellant.

The Efforts of the City of Pleasant Valley to Annex Tracts 1 & 2: Appellant's attempts at the annexation of both land areas originated with its adoption of Ordinance No. 210 on May 24, 1963. That ordinance specifically provided for a special election to be held on June 25, 1963, to submit the question of annexation to the voters as required to a fourth class city by Sec. 79.020, V.A.M.S. The election was never held because, on June 24, 1963, on the petition of the City of Liberty, the City of Pleasant Valley was enjoined from proceeding with the annexation or from attempting to exercise any municipal jurisdiction over any of that territory. On August 9, 1963, judgment was entered reciting 'all parties agree that the Court may enter the injunction prayed for'. No appeal was taken from that judgment and it became final. Thereafter, on December 19, 1963, while the mandate of the injunction was still in effect, the City of Pleasant Valley adopted Ordinance No. 232 which undertook to amend Ordinance No. 210 as to eliminate Tract 2 as a subject of annexation. On May 7, 1968, however, (after our hand-down in Julian v. City of Liberty, supra), the City of Pleasant Valley adopted Ordinance No. 456 undertaking to amend both ordinances, No. 210 and 232, and seeking the annexation, once again, of both Tracts 1 and 2. As we have previously noted, appellant's declaratory judgment action seeking judicial approval of the annexation was filed two days later. It is in this posture that the respective claims of the two municipalities are presented.

In assailing the judgment of ouster as it relates to Tract 1, appellant contends that the City of Liberty's claim of prior annexation should not have been allowed because based upon a void judgment. More specifically, appellant contends it was 'entitled to show the court that the November 1, 1963 judgment (on Tract 1) was void because it was not a class action'. The sense of appellant's argument is that the Sawyers Act, Sec. 71.015, V.A.M.S., requires that annexation suits be brought as declaratory judgment class actions. Civil Rule 52.09(a), V.A.M.R., governing class actions, requires that the plaintiff in such an action prove its allegations of fact to show that the defendants named and served fairly represent the whole class. Civil Rule 52.09(d), moreover, does not permit such a class suit to be maintained unless the judgment or decree will be binding upon all members of the class. Appellant's argument concludes that as Exhibit C, the judgment entry of November 1, 1963, contains 'no finding that the defendants represented any class or that the judgment was intended to be binding upon any class * * * the judgment is void upon its face * * *'.

We regard this argument (as well as the pleaded defense which it reiterates) as a collateral attack upon the judgment of November 1, 1963. It attempts to impeach that judgment in a proceeding not instituted for the express purpose of overturning it. Howey v. Howey, Mo., 240 S.W. 450, 456(5--8); Beil v. Gaertner, 355 Mo. 617, 197 S.W.2d 611, 613(1, 2); Restatement of Judgments, Sec. 11, pp. 65, 66. A judgment rendered by a court having jurisdiction of the parties and subject matter, however, is not open to collateral attack in respect of its validity or conclusiveness of the matters adjudicated. LaPresto v. LaPresto, Mo., 285 S.W.2d 568, 570(2, 3); Payne v. St. Louis Union Trust Company, Mo., 389 S.W.2d 832(2); 49...