State ex rel. Black v. Renner

• Decision Date: 17 February 1941
• Parties: STATE OF MISSOURI EX REL. GERTRUDE BLACK, PLAINTIFF IN ERROR, v. ROY RENNER ET AL., DEFENDANTS IN ERROR
• Court: Kansas Court of Appeals

148 S.W.2d 809

235 Mo.App. 829

STATE OF MISSOURI EX REL. GERTRUDE BLACK, PLAINTIFF IN ERROR, v. ROY RENNER ET AL., DEFENDANTS IN ERROR

Court of Appeals of Missouri, Kansas City

February 17, 1941

Error to Clay Circuit Court.--Hon. James Rooney, Judge.

AFFIRMED.

Judgment affirmed.

Wm Bush and Alan F. Wherritt for plaintiff in error.

(1) Relator (plaintiff in error) has a vested right to the tax levy made at the time her services as school teacher were rendered and her contract made. Louisiana v. New Orleans, 215 U.S. 170, 54 L.Ed. 144; Louisiana v New Orleans, 102 U.S. 203, 26 L.Ed. 132; Von Hoffman v. City of Quincy, 18 L.Ed. 403, 71 U.S. 535; United States v. Muscatine, 75 U.S. 575, 19 L.Ed. 490. (2) Relator (plaintiff in error) has a joint judgment against five common school districts of Clay County, Missouri, and the liability to pay is joint and this mandamus suit is ancillary to and in the nature of a continuation of the original action in which the judgment was rendered and is properly brought jointly against the joint debtors, each of which is liable to appellant for the full amount of the judgment. State ex rel. v. Cook, 201 S.W. 361; Kennedy v. School District, 49 Iowa 189; 56 C. J. subject, "Schools," sec. 977; State v. Hall, 94 W.Va. 400, 119 S.E. 166. (3) The prayer for relief is no part of petition and may be disregarded and the petitioner can pray for any alternative relief to which he may deem himself entitled and the court will grant whatever relief is proper. Section 764, R. S. of Mo., 1929; Caldwell v. Eubanks, 30 S.W.2d 976; Wollums v. Mutual Benefit Ass'n, 46 S.W.2d 259; McCarty v. Heniker, 4 S.W.2d 1088; Musgrove v. Bank, 187 Mo.App. 483; Telephone Co. v. Hickman, 111 S.W. 311. Mandamus is the proper remedy herein. State ex rel. Edwards v. Wilcox, 21 S.W.2d 930; State ex rel. Hufft v. Knight et al., 121 S.W.2d 762.

CAMPBELL, C. Sperry, C., concurs.

OPINION

CAMPBELL, C.

--Gertrude Black, a school teacher, brought a proceeding in mandamus against the directors of five common school districts in Clay County, Missouri, on March 29, 1939. She filed an amended petition in the cause on April 19, 1939.

The respondents, now defendants in error, on July 19, 1939, filed a pleading in which they treated the amended petition as an alternative writ of mandamus and moved the court to quash the writ for the reasons (1) the writ (petition) failed to state facts sufficient to constitute a cause of action; (2) that there was a misjoinder of parties respondent; (3) that the writ fails to allege there are any funds available against which warrants could be lawfully issued; (4) the writ orders respondents "and each of them" to levy taxes on the property in five districts, (5) and that the writ fails to state facts showing that any respondent has failed or refused to perform any ministerial duty. The motion was heard and sustained and the cause dismissed. In due time thereafter the record in the cause was brought to this court upon a writ of error obtained by plaintiff in error. The amended petition alleged plaintiff in error, hereinafter called relator, taught school under contract with the Consolidated School District No. 1, Clay County, Missouri, during the years 1923-1924 and 1924-1925; that the consolidated school district was dissolved and that her salary as teacher was not paid in full; that, thereafter, the five common school districts named in the caption hereof were organized from the territory theretofore included within said consolidated school district. The petition further alleged that relator obtained a judgment against the five common school districts in the amount of $ 682 on July 13, 1935; that defendants in error failed and refused to pay said judgment or any part thereof. The petition further alleged that School District No. 51, at the time the amended petition was filed, had in its trachers' fund the sum of $ 468.74 and the sum of $ 256.34 in its incidental fund; that District No. 63 then had in its teacher's fund the sum of $ 668.55 and in its incidental fund $ 1341.65; that District No. 64 then had $ 917.19 in its teachers' fund and $ 302.88 in its incidental fund; that District No. 73 then had in its teachers' fund $ 510.78 and in its incidental fund $ 622.79; that the funds so held by said districts were subject to the payment of relator's judgment, and that it was the duty of the directors of the five school districts to apply said funds in payment of said judgment; that if said districts did not hold funds sufficient to pay relator's judgment, it was the duty of the directors to levy taxes against the property in the districts sufficient to pay the judgment.

The prayer of the petition follows:

"Wherefore, relator prays the Court to issue its Writ of Mandamus herein ordering and directing said school directors of said school districts to forthwith pay said judgment in favor of relator including the costs in said suit, out of the funds on hand as aforesaid in said school districts, subject to the payment of said judgment; or, if sufficient funds be not on hand for the payment of said judgment; or, in the discretion of the Court, that the Court order by Writ of Mandamus aforesaid, said Englewood School District No. 64, Big Shoal School District No. 63, and Faubian School District No. 51, Clay County, Missouri, to forthwith and immediately make a levy of taxes against the property in said respective districts sufficient to procure funds necessary for the payment of said judgment and apply said taxes immediately upon collection and receipt thereof by said respective school districts to the payment and discharge of said judgment, or, in the discretion of the court that the court by Writ of Mandamus aforesaid, order the aforementioned five common school districts, against which said judgments were rendered, to make a levy of taxes against the property in said respective districts sufficient to procure the funds necessary for the payment of said judgment, and apply said taxes immediately upon collection and receipt thereof by said respective school districts to the payment and discharge of said judgment; and that relator have and recover herein her costs herein expended."

Relator evidently realizing the relief prayed for cannot be granted, contends that the prayer is no part of the petition and...