State ex rel. Aubuchon v. Jones

• Citation: 389 S.W.2d 854
• Decision Date: 20 April 1965
• Docket Number: No. 5,No. 31611,5,31611
• Parties: STATE of Missouri ex rel. Clarence AUBUCHON et al., Relators, v. Douglas L. C. JONES, Judge of Divisionof the Circuit Court of St. Louis County, Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 854

389 S.W.2d 854

STATE of Missouri ex rel. Clarence AUBUCHON et al., Relators, v. Douglas L. C. JONES, Judge of Division No. 5 of the Circuit Court of St. Louis County, Missouri, Respondent.

No. 31611.

St. Louis Court of Appeals, Missouri.

April 20, 1965.

Schurr & Inman, Robert L. Inman, Clayton, for relators.

George E. Murray, Clayton, for respondent.

RUDDY, Presiding Judge.

This is an original proceeding filed in this court wherein relators seek to compel the respondent, Honorable Douglas L. C. Jones, Judge of Division No. 5 of the Circuit Court of St. Louis County, Missouri, by our writ of mandamus, to permit relators to intervene in an annexation proceeding pending before respondent. Our alternative writ of mandamus was issued on relators' petition and respondent has filed his return to said alternative writ.

Relators in a motion filed by them have moved for judgment on the pleadings, thereby admitting all facts well pleaded in the return. All allegations of the petition and the alternative writ properly pleaded and not denied by respondent in his return are admitted to be true. State ex rel. Bliss et al. v. Grand River Drainage Dist. et al., 330 Mo. 360, 49 S.W.2d 121, l.c. 124; State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167, l.c. 173; State ex rel. Berg et al., v. Thompson, Mo.App., 256 S.W.2d 566, l.c. 567. This leaves only questions of law for our determination. It is alleged in relators' petition, by reference to an exhibit attached, and in the alternative writ that the relators 'are inhabitants and owners of real estate in the unincorporated area that plaintiff seeks to annex.' This allegation is not denied by respondent; therefore, it is admitted.

Other facts disclosed by the pleadings show that on October 6, 1959, the City of Fenton, Missouri, a municipal corporation, instituted its action for annexation of three parcels of land described in the annexation petition, which parcels were adjacent and contiguous to the City of Fenton, Missouri. In the annexation proceeding 28 individuals, owners of land in the parcels involved, were named as defendants and were alleged to be representative of the class of persons owning land in the area sought to be annexed. These defendants were duly served with summons and upon failing to answer an interlocutory judgment of default and inquiry was granted against them on November 12, 1959, thirty-seven days after the annexation suit was filed. None of the present relators was named as a defendant in the original action.

On November 26, 1959, sixty-one individuals filed a joint motion to set aside the interlocutory judgment of default and inquiry and asked that they be permitted to intervene in the annexation proceeding. Thereafter, on or about November 30, 1959, the interlocutory judgment of default and inquiry entered November 12, 1959, was set aside and said 61 individuals were permitted to intervene in the annexation proceeding. Thereupon, said intervenors filed a responsive pleading. Among those permitted to intervene on this date were Glen E. Biehl and Mrs. Glen (Marguerite) Biehl, his wife; Robert J. Perry and Mrs. Robert (Ida) Perry, his wife. On the same day the above individuals were permitted to intervene, St. Louis County, a municipal corporation, and James H. McNary as Supervisor of said County, were permitted to intervene in said cause and filed their responsive pleadings to the annexation petition. On March 27, 1962, plaintiff (City of Fenton) in the annexation proceeding filed an amended petition reducing the number of tracts sought to be annexed from three (3) to two (2).

On April 6, 1962, plaintiff filed a motion to dismiss as to certain named intervenors and defendants inasmuch as the property of which they were owners and residents was no longer sought to be annexed. At the time the aforesaid motion was filed a notice to hear said motion on April 19, 1962, was filed, on which day the said motion was duly heard by respondent and submitted to said respondent. On September 24, 1962, respondent found that said named intervenors and defendants were no longer interested in the subject matter of the annexation proceeding and their names were ordered stricken as defendants and intervenors. Said defendants and intervenors, so dismissed and stricken on said date did not have responsive pleadings to the amended petition on file at that time. On April 18, 1962, prior to the time of the entry of the court's order dismissing certain defendants and intervenors, the attorney for all intervenors was permitted to withdraw as counsel for all intervenors. At the time counsel for said intervenors withdrew from the case he filed in the proceedings the following court memorandum: 'With leave of court the undersigned attorney for Intervenors Orville Hendricks, et al., withdraws as counsel for Intervenors, a copy of this memorandum being mailed to each of the intervenors.' Prior to the time permission was granted counsel to withdraw, no pleading had been filed by counsel on behalf of intervenors to the amended petition, nor were intervenors advised that an amended petition had been filed. St. Louis County and James M. McNary as County Supervisor filed several motions to plaintiff's amended petition, which motions were never taken up or submitted to the court. On September 18, 1962, St. Louis County and James H. McNary, as Supervisor of St. Louis County, withdrew as intervenor defendants and dismissed their pleadings in the annexation proceeding.

On September 24, 1962, the date the trial court found that certain named intervenors and defendants were no longer interested in the subject matter of the annexation proceeding and their names were ordered stricken and the annexation proceeding dismissed as to them, the court entered an interlocutory judgment of default and inquiry as to the remaining defendants and intervenors for their failure to file pleadings to plaintiff's (City of Fenton) amended petition. Thereafter, there was no further inquiry by the court and none sought by plaintiff and no final judgment of annexation was entered.

On December 10, 1962, approximately 2 1/2 months after the entry of the interlocutory judgment of default and inquiry as to the remaining defendants and intervenors, the relators in the instant case filed their motion to intervene, accompanied with their proposed answer to the amended petition and a motion to set aside the interlocutory judgment of default and inquiry previously entered.

Relators' motion to intervene and to file said answer and to set aside the interlocutory judgment of default and inquiry was denied by the respondent on the 23rd day of April, 1963. At the time of the filing of the instant mandamus proceeding the interlocutory judgment of default and inquiry had not been reduced to final judgment.

The present relators who sought to intervene in the court below numbered 75. Among the 75 who seek intervention in the proceedings below are Glen E. Biehl, Marguerite Biehl, Robert J. Perry and Ida Perry, who were among the 61 individual intervenors who were permitted by the trial court to intervene on November 30, 1959.

Relators in their motion to intervene, filed in the trial court below, alleged that they are inhabitants and owners of real estate in the unincorporated area that plaintiff (City of Fenton) seeks to annex and are fairly representative of the class consisting of the majority of inhabitants and owners of real estate in said unincorporated area. It is further alleged in said motion to intervene that the relators have an interest in the controversy between the City of Fenton and those presently joined as defendants and intervenors and that they (relators) will be bound by a judgment in the action.

It is further alleged that the representation of their interest by existing parties in the proceeding is inadequate and that their defense to the proceeding has questions of law and fact in common with plaintiff's petition. They further allege that if permitted to intervene they will not unduly delay or prejudice the adjudication of the rights of the parties thereto. We see no need to recite the allegations of the proposed answer that accompanied their motion to intervene, nor is it necessary to recite the allegations contained in their motion to set aside the interlocutory judgment of default and inquiry.

It is admitted in the return of respondent that the interlocutory judgment of default has not been reduced to final judgment. In his return respondent denies that relators have no remedy other than mandamus, 'in that Glen E. Biehl, Marguerite Biehl, Robert J. Perry, and Ida Perry, were all Intervenor-Defendants in default in the original law suit, and have their right to appeal upon final judgment thereon, should such judgment be adverse to their interest; * * *.' It is further alleged in said return that the 'Relators were part of a group or organization, chose their own course of action opposing this suit from the time of its filing in September of 1959, as shown by the transcript of the testimony of the only two Relators who appeared in Court to testify on this last motion to intervene on February 1st, 1962. They were aware of this action from its inception and certain individuals connected with their organization were the original Intervenor-Defendants. These individuals now being in default, these additional proposed intervenors from the same group, including four (4) of the original defaulting intervenors, are presently attempting to delay this action, by coming in some four (4) years later.'

It is further alleged by respondent in his return that relators were not entitled to intervention as a matter of right, in that they failed to make timely application for intervention. It is further alleged by respondent in his return that he could not have exercised any discretion in favor of relators in that their motion to set aside the default was not timely filed, no...