State ex rel. English v. Trimble
| Decision Date | 02 October 1928 |
| Docket Number | No. 27875.,27875. |
| Parties | THE STATE EX REL. H.W. ENGLISH and BEE BRANCH DRAINAGE DISTRICT v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals. |
| Court | Missouri Supreme Court |
(1) The relators are entitled to have this court review all of the points and questions raised in this proceeding. State ex rel. v. Cox. 276 S.W. 869; State ex rel. v. Becker, 293 S.W. 783. (2) Bee Branch Drainage District is a public corporation; its officers public officers and its funds public funds. State ex rel. Caldwell v. Drainage District, 236 S.W. 15; Arthand v. Drainage District, 232 S.W. 268. (3) The plaintiff below was not entitled to bring or maintain his action against the drainage district, while the work under the contract was not completed and while the funds sought to be reached by the action were being or might be used for a public purpose, and while the Central Construction Company was engaged in such public service. In holding the plaintiff was entitled to equitable garnishment, the Court of Appeals violated the last controlling decision of this court. Geist v. St. Louis, 156 Mo. 643. (4) Under the opinion and record properly receivable in this action, the Court of Appeals conflicted with the last controlling decisions of this court in holding that the partnership composing the Central Construction Company was dissolved and the court was called on to liquidate its affairs, and in holding that the case before it was one to marshal assets. Wade v. Nat. Bank of Commerce, 221 S.W. 364; Hundley v. Farris, 103 Mo. 87; Goddard-Peck Grocery Co. v. McCune, 122 Mo. 433. (5) The opinion of the Court of Appeals is in conflict with the last controlling decisions of this court in holding that the funds due a partnership may be held in an action against one partner. Hill v. Bell, 111 Mo. 44; State ex rel. v. Holtcamp, 245 Mo. 670. (6) The opinion of the Court of Appeals conflicted with the last controlling decisions of this court in holding that the action was one to marshal assets, distribute funds and wind up the partnership, since that was not the theory on which the suit was brought or tried below. Dougherty v. Ganghoff, 239 Mo. 660.
Hulen & Walden and Roy McKittrick for respondents.
(1) Unless this court can say from the facts that appear in the opinion of the respondents, that its opinion is in conflict with the last previous ruling of this court on the same or similar facts, the record should not be quashed. State ex rel. American Press v. Allen, 256 S.W. 1049; State ex rel. Winters v. Trimble, 290 S.W. 115; State ex rel. Bradley v. Trimble, 289 S.W. 922. (2) The original record cannot be examined for facts not stated in the opinion of the respondents, except such documents referred to and was the subject-matter of the ruling therein. State ex rel. Union Biscuit Co. v. Becker, 293 S.W. 783. (3) The action against the Bee Branch Drainage District is an equitable garnishment, a theory of the law which has been sustained. Pendleton v. St. Louis, 49 Mo. 565; Hilton v. Construction Co., 202 Mo. App. 672; Divers v. Howard, 144 Mo. 671. (4) The opinion follows the last controlling decisions of this court under the same or similar facts. Goddard-Peck Groc. Co. v. McCune, 122 Mo. 433; Hundley v. Farris, 105 Mo. 87; Wade v. Nat. Bank of Commerce. 221 S.W. 364.
Return having been made to our writ of certiorari directed to the Kansas City Court of Appeals in the case of Jesse Frazier v. Lloyd Radford, J.W. Radford and H.W. English, composing the firm of Central Construction Company, and Bee Branch Drainage District, relators seek to quash respondents' opinion and judgment therein, on the ground of alleged conflict with certain controlling decisions of this court.
From respondents' opinion filed in the above cause we gather that this is a suit in equity whereby plaintiff, suing in his own behalf and as the assignee of eight claims against defendants, sought recovery for labor done and material furnished in the fulfillment of a certain contract; that defendant Bee Branch Drainage District is a drainage district incorporated under the laws of the State of Missouri; that on August 5, 1922, said district entered into a contract with the Central Construction Company, a partnership composed of the individual defendants above mentioned, by which said construction company agreed to do the work necessary to carry out a plan of reclamation which had been adopted by the district; that prior to the commencement of the work, said construction company, with the written consent of the district, assigned its contract to R.W. Cropper Engineering Company; that said engineering company in December, 1922, began the work of reclamation under the assigned contract and continued until June, 1923, when the work was abandoned by the engineering company, but was completed in November, 1923, by the construction company; that while the engineering company was engaged in the performance of the contract it employed plaintiff and his assignors to perform certain work and furnish certain materials, for which they were unable to obtain payment either from the engineering company or the other defendants; that this suit was instituted in nine counts, each of which covers a claim of an individual who did certain work and furnished materials as set forth therein; that plaintiff seeks to hold the individual defendants liable for the demands sued upon and to have judgment against them satisfied out of certain money alleged to be in the hands of the district and due said defendants on account of the work, and asks that the drainage district be restrained from paying out any money in its hands to said defendants, and that it be ordered to pay plaintiff out of said money belonging to said defendants the sums sued for, with interest, and costs; that the trial court rendered a decree against the individual defendants on each of the nine counts, adjudging that plaintiff recover from them out of the funds in the hands of the drainage district, ordering the amount paid to plaintiff within thirty days, and restraining said defendants from collecting from the district and the district from paying them the amount found to be due plaintiff; that personal service was had upon defendant English, and plaintiff sought to get service by publication on the other individual defendants; that the affidavit upon which the order of publication was based was attacked by defendants Lloyd Radford and J.W. Radford in the trial court by filing a plea to the jurisdiction and a motion to quash service on them, on the ground that the affidavit on which the order of publication was based did not give the court jurisdiction of these defendants. Respondents sustained the plea and motion of defendants Lloyd and J.W. Radford, but held that plaintiff was entitled to pursue his remedy against the other partner. English, upon whom personal service was had, and it further appearing that both this partner and the partnership were insolvent and the partnership dissolved and no other partnership property was located within the State, it was held that plaintiff in this proceeding was subrogated to the rights of defendant English, whose liability for partnership debts was both joint and several, and plaintiff could by equitable garnishment reach the partnership property within the jurisdiction of the court. The judgment of the trial court was affirmed on all counts except one, in which it was held that the labor and material furnished did not come within the purview of the contract.
Relators' chief contention is that the decision of respondents, in affirming the judgment rendered below, contravenes controlling decisions of this court (Geist v. St. Louis, 156 Mo. 643; Fortune v. St. Louis, 23 Mo. 239; Hawthorn v. St. Louis, 11 Mo. 59), which announce the doctrine that a municipal corporation is not subject to garnishment process, either equitable or statutory, while the moneys or funds sought to be impounded are in the treasury of such corporation and applicable to the prosecution of its public works, or while the primary debtor is presently employed by the municipal corporation and engaged in the public service. As already stated, the opinion discloses that the trial court rendered judgment in favor of plaintiff and against the individual defendants adjudging that plaintiff could recover from them "out of the funds in the hands of the drainage district." However, there is nothing in respondents' opinion indicating that at any stage of plaintiff's proceeding were the moneys or funds sought to be impounded applicable to the prosecution of the public work of relator drainage district, or that the individual defendants were in its employ and engaged in the public service, nor does the opinion disclose that any such issue was ever raised or ruled in the case. But, relators say, respondents must be held to have considered and ruled such question or issue, whether they discussed the same in their opinion or not, because it was necessarily and unavoidably involved in the decision reached, citing State ex rel. Boeving v. Cox. 310 Mo. 367, wherein Division Two of this court ruled that the Springfield Court of Appeals must be held to have considered a question that was necessarily and unavoidably involved in the decision reached, whether it discussed such question or not.
The question not discussed, but held to have been considered in the decision reached in the Boeving case, supra, was the question of the proximate cause of the injury. However, the opinion in that case disclosed that the action was one for damages for personal injuries to plaintiff because of the alleged negligence of another, and that a judgment for plaintiff was affirmed on appeal. The opinion, therefore, on its face disclosed that the question of proximate cause was necessarily considered by the court of appeals, whether discussed or not...
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