State ex rel., Arthur v. Hammett
| Decision Date | 05 May 1941 |
| Docket Number | No. 19436.,19436. |
| Citation | 151 S.W.2d 695 |
| Parties | STATE EX REL., HARRIETT W. ARTHUR, ET AL., RELATORS, v. AUBREY R. HAMMETT, JUDGE, RESPONDENT. |
| Court | Missouri Court of Appeals |
(1) The Circuit Court of Howard County is acting beyond its jurisdiction in entering the proposed nunc pro tunc judgment of incorporation and prohibition is the proper remedy. State ex rel. Buckner v. Ellinson, 277 Mo. 294, 210 S.W. 401. (a) The fact that a court has general jurisdiction of a class of actions does not defeat the right of prohibition if the court is exceeding its jurisdiction in the action at bar. State ex rel. Johnson v. Sevier, 339 Mo. 483, 98 S.W. (2d) 677; State ex rel. Nat'l Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W. (2d) 418, 425; State ex rel. Riggs v. Seehorn, 344 Mo. 186, 125 S.W. (2d) 851; State ex rel. Smith v. Joynt, 344 Mo. 686, 127 S.W. (2d) 708; State ex rel. Buckner v. Ellinson, 277 Mo. 294, 210 S.W. 401. (b) The entry of the proposed judgment would have been beyond the jurisdiction of the court to enter on June 1, 1928, and, therefore, the court is without jurisdiction to enter the judgment nunc pro tunc at this time. In re Mississippi & Fox River Drainage District, 270 Mo. 157, 192 S.W. 727; State ex rel. Greeley v. City of St. Louis, 67 Mo. 113, l.c. 117. (1) The application for incorporation of the drainage district is insufficient to confer jurisdiction upon the court to enter a judgment incorporating the drainage district. In re Mississippi & Fox River Drainage District, 270 Mo. 157, 192 S.W. 727; May Department Stores v. Union Electric Light & Power Co. et al., 341 Mo. 299, 107 S.W. (2d) 41; State ex rel. Wayne County v. Woods, 234 Mo. 16, l.c. 24, 136 S.W. 337; Van Hoose v. Heines (Mo. App.), 180 S.W. 30; Elsberry Drainage District v. Seerley, 329 Mo. 1237, 49 S.W. (2d) 162, 165. (2) The court was without jurisdiction to enter a judgment incorporating the district on June 1, 1928, because there were objections to the application on file and undisposed of. (3) The boundary of the district and the description of the lands to be incorporated in the district as set forth in the proposed nunc pro tunc judgment differ materially from the descriptions set out in the application for incorporation. State ex rel. Waples v. Mississippi & Fox River Drainage District, 292 Mo. 696, 238 S.W. 446. (c) The court is without jurisdiction to enter the proposed nunc pro tunc judgment because there is no evidence furnished by some entry in the clerk's minute book, or the Judge's docket, or some paper required by law to be filed and found in the papers of the case which will support the proposed nunc pro tunc judgment. (d) The commissioner correctly ruled that the writ should issue in this case because no notice was given to the relators of the application for the nunc pro tunc decree. Collison v. Norman (Mo.), 191 S.W. 60; Clancy v. Luyties Real Estate Co. (Mo.), 10 S.W. (2d) 914; Sec. 1074, R.S. Mo. 1929. (2) An appeal will not lie from the entry of this nunc pro tunc order, and prohibition is the proper remedy. In re Wilhelmina Drainage District, 280 Mo. 1, 216 S.W. 530; In re Mississippi & Fox River Drainage District, 270 Mo. 157, 192 S.W. 727; St. L., Kennett & So. Ry. Co. v. Wear, Judge, 135 Mo. 230, 256, 257, 36 S.W. 658; State ex rel. Fowler v. Calvird, 230 Mo. App. 548, 93 S.W. (2d) 1106. (3) Prohibition should issue in this case even though the court may find that an appeal would lie from the proposed judgment nunc pro tunc. State ex rel. Busby v. Cowan, 232 Mo. App. 391, 107 S.W. (2d) 805, 808. (4) The commissioner correctly ruled that relators are not estopped to maintain this suit and are not guilty of any latches. (5) The Commissioner correctly ruled that there is no evidence furnished by some entry in the clerk's minute book or the Judge's docket, or in some paper required by law to be filed and found in the papers of the case, which gives the Court jurisdiction to enter the judgment for incorporation nunc pro tunc, and properly ruled that the writ of prohibition should issue for this reason. May Dept. Stores v. Union Electric Light & Power Co. et al., 341 Mo. 299, 107 S.W. (2d) 41; State ex rel. Greeley v. City of St. Louis, 67 Mo. 113, l.c. 117; Lakin v. Blum (Mo. App.), 43 S.W. (2d) 853; Henry County v. Salmon, 201 Mo. 136, 100 S.W. 20; Collier v. Catherine Lead Co., 208 Mo. 246, 106 S.W. 971; Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146; Sec. 10745, R.S. Missouri 1929; Sec. 10743, R.S. Missouri 1929. (6) The commissioner correctly ruled that the writ should issue in this case, because no notice was given to relators of the application for the nunc pro tunc decree. Collison v. Norman (Mo.), 191 S.W. 60; State ex rel. Wayne County v. Woods, 234 Mo. 16, l.c. 24, 136 S.W. 337; Van Hoose v. Heines (Mo. App.), 180 S.W. 30. (7) The commissioner correctly ruled that the writ should issue, because there is no petition before the court for nunc pro tunc order or decree signed by any of the signers of the original petition seeking the incorporation of the Drainage District, nor by anyone representing them, nor by any landowners owning land within the purported District, and the petition is not filed by an individual or legal recognizable entity acting as petitioner or movant. (8) The commissioner correctly ruled that relators are guilty of no laches in this case. May Dept. Stores v. Union Electric Light & Power Co. et al., 341 Mo. 299, 107 S.W. (2d) 41. (9) The commissioner correctly ruled that relators are not estopped to maintain this suit by the written waivers signed by their predecessors in title. See Authorities, Point VIII. (10) The descriptions of the land are material in determining the jurisdiction of the court to enter the nunc pro tunc decree. People v. Miller (Ill.), 163 N.E. 139. (11) The jurisdiction of the case is in this court. State ex rel. Douglas v. Tune, 273 Mo. 255, 200 S.W. 1062; State ex rel. Brown and Williamson Tobacco Corp. et al. v. Workmen's Compensation Commission (Mo.), 126 S.W. (2d) 230; State ex rel. Pieper v. Mueller, 227 Mo. App. 1101, 59 S.W. (2d) 719. (12) The Circuit Court of Howard County has jurisdiction to correct the decree of incorporation of the Pearson Drainage District by nunc pro tunc entry and Prohibition will not lie to prevent it from doing so. State ex rel. Supreme Temple of Pythian Sisters v. Cook, 136 S.W. (2d) 143; Chapter 64, Article 1, R.S. of Mo., 1919; Sec. 10743, R.S. Mo., 1929; Sec. 10745, R.S. Mo., 1929; Elsberry Drainage Dist. v. Seerley, 329 Mo. 1237, 49 S.W. (2d) 162; Armstrong v. Batterton, 303 Mo. 220, 260 S.W. 80; State v. State, 270 Mo. 570, 214 S.W. 85, 87; Sec. 10785, R.S. Mo., 1929; State v. Mississippi and Fox River Drainage District (Mo.), 238 S.W. 446, 450; State v. Ellison (Mo.), 210 S.W. 401; Nave v. Todd, 83 Mo. 601; Mann v. Schroeder, 50 Mo. 306, 308; Collinson v. Norman, 191 S.W. 60; Big Tarkio Drainage Dist. v. Voltmer, 256 Mo. 152, 165 S.W. 338; State v. Woerner, 294 S.W. 423.
J.L. Milligan, C.B. Kimberly, Jack H. Rothschild and Roy D. Williams for respondent.
(1) It is agreed that the Twenty-eight Thousand ($28,000) Dollars of bonds are outstanding, and would be affected. The jurisdiction is, therefore, in the Supreme Court. Plemmons et al. v. Pemberton et al., ___ Mo. ___. (2) The relators are guilty of laches and cannot maintain this proceeding. People v. Miller, (Ill.), 163 N.E. 139; State v. School District of Lathrop, 314 Mo. 315, 284 S.W. 135; Stamper v. Roberts, 90 Mo. 683, 3 S.W. 214; Kircher v. Evers, et al. (Mo. App.), 247 S.W. 251; State v. Miller, 113 Mo. App. 665, 88 S.W. 637; State ex rel. City of Sikeston v. Mo. Utilities Co., 331 Mo. 337, 53 S.W. (2d) 394. (3) The relators are estopped by their written instruments to maintain this suit. State ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W. (2d) 394; People ex rel Kidd v. Crowley (Ill.), 95 N.E. 192. (4) Nunc pro tunc, being the proper remedy, the evidence on the Judge's docket and in the papers is ample for the nunc pro tunc. In re Fulsome's Estate (Mo. App.), 193 S.W. 618; Lakin v. Blum (Mo. App.), 43 S.W. (2d) 853; Henry County v. Salmon, 201 Mo. 136, 100 S.W. 20; Collier v. Lead Co., 208 Mo. 246, 106 S.W. 971; Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146. (5) Proper notice was given of application for nunc pro tunc. Honey Creek Drainage Dist. v. Farm City Inv. Co., 326 Mo. 739, 32 S.W. (2d) 757. (6) Descriptions of lands are not an issue in this proceeding. People v. Miller, (Ill.), 163 N.E. 139. (7) The court incorporated said District. The District is the only entity that can ask that the record be corrected. (8) The proceeding for nunc pro tunc is not a suit and the right of a drainage district to to sue is not in question. Appleton v. Turnbull, 84 Me. 72, 24 Atl. 592; Dullard v. Phelan, 83 Ia. 471, 50 N.W. 204; Elk Garden Co. v. Thayer Co., 179 Fed. 556.
This case involves the question of incorporation of a drainage district. The cause was before this court for review at the October Term, 1940, and an opinion was written by Commissioner Campbell. The opinion was duly adopted by this court and handed down on September 26, 1940. Thereafter, motion for rehearing was filed and for the first time the question of our jurisdiction was raised. By reason of the jurisdictional question this court granted a rehearing and additional briefs were filed and the cause was reargued and resubmitted at the March Term, 1941, of this court.
After reconsideration, we conclude that this court has jurisdiction to act in this matter and we adopt the opinion heretofore written by Commissioner Campbell as the opinion of this court and we will follow with paragraphs discussing and stating our conclusions on the question of jurisdiction.
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