State ex rel. Consolidated School Dist. No. 2 of Pike County v. Haid

• Decision Date: 05 September 1931
• Citation: 41 S.W.2d 806,328 Mo. 739
• Parties: The State ex rel. Consolidated School District No. 2 of Pike County v. George F. Haid et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

41 S.W.2d 806

328 Mo. 739

The State ex rel. Consolidated School District No. 2 of Pike County v. George F. Haid et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

September 5, 1931

Certiorari to St. Louis Court of Appeals.

Writ quashed.

A J. Murphy, Jr., and May & May for relator.

The opinion of respondents is contrary to and in conflict with prior controlling decisions of the Supreme Court, in the following particulars: (1) The opinion contravenes the following decisions of the Supreme Court as regards a general principle of law, which has been ruled upon in a like or similar state of facts. "That money illegally disbursed by a public officer may be recovered back." Lamar Township v. Lamar, 261 Mo. 187. "And no subsequent approval, acquiescence, non-judicial in character can operate to justify an unlawful act." State ex rel. v Scott, 270 Mo. 153. (2) The doctrine of equitable estoppel does not apply to the facts of this case, and respondents, in said opinion, have not applied to such facts the same rule of decision which has been applied by the Supreme Court in previous rulings on the same or a similar state of facts. See the Lamar and Scott cases, supra; also, State ex rel. v. Daues, 288 S.W. 14; Blodgett v. Perry, 97 Mo. 272; Thompson v. Lindsey, 242 Mo. 76. An equitable estoppel cannot be founded on facts which are equally within the knowledge and intent of both parties." Grafeman Dairy Co. v. Northwestern Bank, 235 S.W. 435; Laughlin v. Wells, 283 S.W. 990. (3) The opinion contravenes a controlling decision of the Supreme Court as regards a general principle of law announced by the Supreme Court as applied to the facts of this case, as follows: "As for the claim of estoppel, it isn't shown that the plaintiff did anything which misled the defendant, or that the defendant relied upon anything done by the plaintiff, and thereby altered his position to his hurt." Kline v. Groeschner, 219 S.W. 652; Kellogg v. Moore, 271 Mo. 194; Burke v. Adams, 80 Mo. 514. (4) "The facts pleaded and agreed upon (and stated in the opinion) do not show estoppel such as is defined by the law." "The law will compel the restitution of public funds by the officer (or municipality) who wrongfully receives it." State v. Hamilton (Mo. Sup.), 260 S.W. 470. "Estoppel being an affirmative defense, a failure to plead and prove all the essential elements that go to make up equitable estoppel precludes it as a defense." Laughlin v. Wells, 283 S.W. 990; Scanlon v. Kansas City, 28 S.W.2d 90. The rule stated in the Hamilton case, supra, at pages 470 and 471, to which the Supreme Court has consistently adhered, is contravened by the opinion of the respondent, which holds that "because of its acquiescence in (by relator) and receipt of benefits from the payment of the money," the doctrine of equitable estoppel applies, and also contravenes the doctrine of equitable estoppel, as defined in Garesche v. Levering Inv. Co., 146 Mo. 436. Nor can the doctrine of equitable estoppel be applied unless the party was misled or deceived by the act or conduct of another; nor can he set it up when he knew, or had the same means of knowledge as the other parties. "If both parties have equal means of knowledge, there can be no estoppel." Spurlock v. Sproule, 72 Mo. 510. (5) Upon the evidentiary facts as found and stated by respondents in their opinion, relator cannot have been guilty of acts or conduct to which the doctrine of equitable estoppel could apply as a matter of law; and in so holding the opinion and decision contravenes certain controlling decisions of the Supreme Court above cited, and therefore the opinion should be quashed. State ex rel. v. Cox, 10 S.W.2d 943. (6) The action is purely one of law. The answer does not plead equitable estoppel as defined in the law, and does not ask for equitable relief, and therefore respondent's decision contravenes the Supreme Court decision in applying an equitable defense to an action at law, where the necessary elements of equitable estoppel are not pleaded and proven; and the action being one at law, and supported by substantial evidence, must stand. The opinion recites as the only allegation in the answers on this point: "That defendant district had received the money for school purposes, and had so expended it; that plaintiff district had received the full benefit of such expenditures and that it was therefore estopped from claiming the money in this action." (7) The opinion of the Court of Appeals, holding that the doctrine of equitable estoppel is applicable on the ground of relator's "acquiescence in, and receipt of benefits from the payment of the money," without pleading and proof of the essential elements constituting equitable estoppel, and supported only by inferences and presumptions, and therefore grounded on mere speculation and conjecture, conflicts with the foregoing Supreme Court decisions as regards general principles of law announced by this court, and therefore the opinion, judgment and record of respondents herein should be quashed. State ex rel. v. Trimble, 12 S.W.2d 730, par. 1; Scanlon v. Kansas City, 28 S.W.2d 90.

Frank Duvall and Hostetter & Haley for respondents.

(1) As to the claim advanced by counsel for relator that estoppel was never pleaded in the original suit. Relator's counsel having set out in their abstract both answers we invite the attention of the court to same. The answers are similar, setting out all the facts, and setting up the same defenses and speak for themselves. If this does not plead equitable estoppel then we would like to know why. We concede the general rule to be that estoppel in order to be available should be pleaded. But where the facts developed by a plaintiff in making out his case shows estoppel there it is available as a defense, even though not pleaded. Also if the allegations amount to estoppel it is a sufficient plea, even though estoppel is not in so many words pleaded. Also where estoppel is insufficiently pleaded and the plaintiff files no demurrer to the plea or no motion to make more definite and specific, he has waived its insufficiency and cannot be heard after trial to complain. Also where a case is tried as if the answer raised the question of equitable estoppel then the plaintiff is concluded and cannot thereafter be heard to assert that estoppel was not in the case. This is on the same principle where the case is tried as if a reply was filed, the courts uniformly hold that no complaint can thereafter be made that no reply was in fact filed. These propositions of law are supported by the following authorities: Long v. Coal & Iron Co., 233 Mo. 713; Brown Const. Co. v. McArthur Bros. Co., 236 Mo. 41; McDonnell v. Savings & Building Assn., 175 Mo. 250; McLure v. Bank, 263 Mo. 128; Fairgate Realty Co. v. Drozda, 181 S.W. (Mo. Sup.) 398; Grafeman v. Northwestern Bank, 235 S.W. (Mo. Sup.) 435; Ornellas v. Moynihan, 16 S.W.2d 1007; Berry v. Cobb, 20 S.W.2d 296; Strumbaugh v. Hall, 30 S.W.2d 160; Cadematori v. Gauger, 160 Mo. 367; Olden v. Hendrick, 100 Mo. 533. The Court of Appeals in its opinion held that equitable estoppel was pleaded. (2) The doctrine of equitable estoppel applied by the Court of Appeals against relator is not only not at variance with Supreme Court rulings but is in exact concord with repeated rulings of this high tribunal. Let us bear in mind that in original proceeding in certiorari the Supreme Court does not determine whether the view of the Court of Appeals is correct or incorrect, but determines only whether its pronouncement of the law is in conflict with a controlling decision of the Supreme Court; in other words the writ of certiorari cannot be made to perform the office of an appeal or writ of error. State ex rel. Vesper Buick v. Daues, 19 S.W.2d 700; State ex rel. American School of Osteopathy v. Daues, 18 S.W.2d 487; State ex rel. Am. Packing Co. v. Reynolds, 287 Mo. 697; State ex rel. Lehrack v. Trimble, 308 Mo. 597. Now let us scrutinize all the declarations of law made by the Court of Appeals in its opinion in disposing of the case in order to analyze the relator's charge that it was guilty of heretical pronouncements of law. In the first place it held in relator's favor on the defense of "mistake of law" (about which relator makes no complaint), and then sets out that the only remaining defense was that "plaintiff profited and benefited by the expenditure of the money to the point that right and justice would now preclude it from a recovery." We cite the following Supreme Court cases in addition to those cited by the Court of Appeals in the excerpt from its opinion supra, as supporting the proposition of law announced by it. Peterson v. Kansas City, 23 S.W.2d 1045; City of Pacific v. Ryan, 28 S.W.2d 655; Cole County v. Central Mo. Trust Co. (Mo. Sup.), 207 S.W. 774; Bragg City Special Road Dist. v. Johnson, 20 S.W.2d 22; Peterson v. Kansas City, 23 S.W.2d 1048; City of Pacific v. Ryan, 28 S.W.2d 655.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an original proceeding in certiorari. The relator seeks to have the recent opinion of the St. Louis Court of Appeals, in the case of Consolidated School District No. 2 of Pike County v. Lucy M. Cooper, Executrix, et al quashed, on the ground that it is in conflict with former decisions of this court. The facts of the case are set out in the opinion of the Court of Appeals, as follows:

"This is an action brought by Consolidated School District No. 2 of Pike County, Missouri, against Lucy M. Cooper, executrix of the estate of T. A. Cooper, deceased, and Consolidated School District No. 4 of Pike County, Missouri, to recover the sum of $ 6,460.28, with interest, which money, in January, 1925 was in the custody of T. A. Cooper, Treasurer of...