State ex rel. and to Use of City of Maplewood v. Southern Sur. Co.

• Citation: 19 S.W.2d 691,323 Mo. 150
• Decision Date: 29 June 1929
• Docket Number: 27212
• Parties: The State at Relation and to Use of City of Maplewood v. Southern Surety Company, Appellant
• Court: United States State Supreme Court of Missouri

19 S.W.2d 691

323 Mo. 150

The State at Relation and to Use of City of Maplewood v. Southern Surety Company, Appellant

No. 27212

Supreme Court of Missouri

June 29, 1929

Rehearing Denied August 2, 1929.

Appeal from St. Louis County Circuit Court; Hon. G. A Wurdeman, Judge.

Affirmed.

Ralph & Baxter and John H. Haley for appellant.

(1) The petition alleges that "the city of Maplewood is a city of the third class organized under the alternative or commission form of government" and that "George D Komar at all the times herein mentioned was the duly appointed and qualified city clerk and collector for the city of Maplewood." A city under alternative or commission form of government has only administrative officers and employees, and such officers and employees are required to perform duties in two or more departments as determined by the counsel, and the creation of all such offices and the duties thereof shall be by ordinance. Sec. 8379, R. S. 1919; Laws 1921, p. 492. Courts do not take judicial notice of acts of the city counsels. Without an ordinance creating such office, there was none. So far as the petition is concerned, there was no such office, as no ordinance creating the same is pleaded. St. Louis v. Roche, 128 Mo. 541; State ex rel. v. Sherman, 42 Mo. 210; Bowie v. Kansas City, 51 Mo. 454; Inhabitants v. Robinson, 75 Mo. 192; Tarkio v. Loyd, 179 Mo. 605. If such officer had any authority or powers, it was "by virtue" of ordinance and there is a total failure to plead any ordinance or ordinances under which "by virtue of appointment" it became his duty and authority to collect certain license fees, taxes, or anything. Absent such ordinance, there were no such duties, or even a legal right. No ordinance prescribing such duties is pleaded. Such allegations are mere conclusions of law. Hoester v. Sammelmann, 101 Mo. 624; Sec. 8231, R. S. 1919. Without pleading any facts, which if proved, might show that the bond, although made to the State of Missouri, was in reality to "protect the city of Maplewood," and then to merely plead the bond in haec verba renders the statement that the bond was "entered into to protect the city of Maplewood" but the statement of a legal conclusion, with the plain terms of the bond reciting the contradictory statement that the principal and surety are "firmly bound unto the State of Missouri." The terms of the bond itself and the conclusion stated in the petition are contradictory and without some other or explanatory facts being pleaded, the petition certainly does not state a cause of action grounded on the bond pleaded. (2) To make the matter worse, the petition also sets out and pleads in haec verba the certificate of its city attorney as follows: "I hereby certify the above bond to be in due form according to law and the ordinance." It is obvious from the face of the petition that the bond is not in due form of law as provided by statute, and no ordinance providing for the form set out in the petition in haec verba is pleaded. "A petition which sets out the contract relied on in haec verba, instead of pleading it by its legal effect is demurrable. If the contract is inartificially drawn so that its meaning or effect is obscure, it is but all the more important that the pleader advancing it should take the responsibility of stating its legal effect." Estes v. Shoe Co., 155 Mo. 583; Anderson v. Gaines, 156 Mo. 669; Reilly v. Cullen, 159 Mo. 328. (3) If the money he collected belonged to the city, it belonged to the city by reason of having been collected by authority of an ordinance or ordinances authorizing its collection by such officer and was collected "by virtue" of some ordinance prescribing the powers and duties of such officer. No such ordinance is pleaded and it is impossible to determine the source of such collections and whether made within the scope of such officer's powers and duties. And the ordinance prescribing the duties and requirements not being pleaded, it is impossible to determine what would have been a "turning the same over in accordance to the duties and requirements of his office under the ordinances of the city of Maplewood." Such allegations are but ambiguous conclusions of the pleader and it is impossible for one to determine whether or not there was a compliance with the ordinance. (4) Courts do not take judicial notice of the ordinances of municipalities, and if a party relies on an ordinance, he should set it out in his pleading. The allegations of the petition such as "the money was collected by virtue of his office," "that by plaintiff signing the bond and the said officer violating the condition of said bond that defendant became indebted to plaintiff" are simply the averment of legal conclusions, not the statement of issuable facts and not therefore traversable and are as no statement at all. Gibson v. Railroad, 225 Mo. 482. (5) The court erred in admitting the so-called ordinances, resolutions, books, records and tax stubs of the city of Maplewood and erred in admitting incompetent, improper and illegal testimony. The court erred in overruling defendant's demurrer at the close of plaintiff's case. (6) The court opened the flood gates and any and all things deemed evidence by plaintiff poured in and conclusion was builded upon conclusion to prove material facts in the case. (7) There was a total failure to prove, not even an effort made in that direction, that although the bond was given to the State of Missouri, in reality it was payable to city of Maplewood. It was not proved that Komar was the duly appointed and qualified clerk and collector, or either of such officers. It was not proved that he actually collected any money belonging to the city. It was not proved that he converted any of the city's funds to his own use. (8) The court erred in finding and adjudging any sum in favor of plaintiff for vexatious delay and erred in adjudging any sum in favor of plaintiff for attorney's fee. The record in this case considered, it surely cannot be seriously contended that defendant was not entitled to litigate the questions in court without being penalized therefor. The bond is unusual, but is the form approved by the city attorney and doubtless prepared by him. The "shortage" so far as the evidence goes may have just as well occurred before the execution of the bond in controversy, and defendant has the right to require that it be proved when it occurred. Shoe Co. v. Assurance Co., 277 Mo. 422; Roofing Tile Co. v. Ins. Co., 277 S.W. 352.

S. E. Eaken and Joseph G. Williams for respondent; Walter F. Stahlhuth and Hensley, Allen & Marsalek of counsel.

(1) The petition states a cause of action. (a) It was unnecessary for plaintiff to plead, in the petition, ordinances creating the office of city clerk and collector, or ordinances imposing the duty upon such officer to collect money due the city because the action was not based on the violation of ordinances. Bailey v. Kansas City, 189 Mo. 503; Kenney v. Ry. Co., 261 Mo. 97; Cullegan v. Studebaker, 67 Mo. 372; Collins v. Trotter, 81 Mo. 283; Secs. 1220, 1239, 1244, R. S. 1919. (b) The petition alleges that Komar was duly appointed, qualified and acting city clerk and collector; that as such it was his duty to collect all moneys due the city from licenses, permits and taxes, under its ordinances, and the statutes of this State; that in the performance of his duty as such officer he collected about $ 21,000, etc.; that he failed and refused to turn said money over to the city, in accordance with the duties and requirements of his office, "under the ordinance of the city of Maplewood and the law of the State." These allegations, by reasonable intendment, plead that Komar was required by ordinances of the city to collect and account for the moneys referred to. Devers v. Howard, 88 Mo.App. 259; Iron Co. v. City, 138 Mo. 608; State ex rel. McKown v. Williams, 77 Mo. 463. (c) The fact that the bond pleaded in the petition does not comply with Section 8231, requiring city officers to give bond to the city, does not invalidate it as a common-law obligation. State ex rel. Jean v. Horn, 94 Mo. 162; Barnes v. Webster, 16 Mo. 258; State ex rel. v. Cochrane, 264 Mo. 581. (d) Pleading a written instrument in haec verba instead of by its legal effect, does not render the pleading demurrable; in either case the court will put its own construction on the instrument. Donovan v. Boeck, 217 Mo. 70; Johnson v. Rys. Co., 247 Mo. 352; State ex rel. v. Williams, 77 Mo. 463; Clark, Code Pleading, Sec. 45, p. 189; Pattison, Code Pleading (2 Ed.) secs. 161-8, pp. 179-186. (2) Defendant waived the alleged defects in the petition, if any, by answering over. (a) If, as defendant claims, the petition was not sufficiently specific in its reference to the ordinances creating Komar's position and duties, or in pleading facts showing that the bond was given for the protection of the city of Maplewood, the defendant waived the defect by answering over. Angel v. Portageville, 168 Mo.App. 16. (b) The pleading of the bond in haec verba in the petition was at the most a formal defect, which, under the statute, was cured by the judgment. Sec. 1550, R. S. 1919. (3) The suit was properly brought in the name of the State of Missouri at the relation of the city of Maplewood. (a) Such is the positive requirement of our statutes. Secs. 1005, 1018, R. S. 1919. (b) If, on the other hand, the plaintiff lacked legal capacity to maintain this suit, the defect was apparent on the face of the petition, and the failure of defendant to demur on that ground waives the point. Sec. 1226, R. S. 1919; State ex rel. v. Surety Co., 294 S.W. 126; Mechanics Bank v. Gilpin, 105 Mo. 17; State ex rel. v. U. S. F. & G. Co., 236 Mo. 352. (4) Upon the record, defendant is estopped to...