State ex rel. Fischer v. Vories

• Citation: 62 S.W.2d 457,333 Mo. 197
• Decision Date: 27 June 1933
• Docket Number: 32684
• Parties: State of Missouri at the relation of E. K. Fischer, O. E. Stuber, Karl Eiman, Dr. E. C. Wuest, O. C. Eiman and Charles Welty, Relators, v. L. A. Vories, Judge of the Circuit Court of Buchanan County
• Court: United States State Supreme Court of Missouri

62 S.W.2d 457

333 Mo. 197

State of Missouri at the relation of E. K. Fischer, O. E. Stuber, Karl Eiman, Dr. E. C. Wuest, O. C. Eiman and Charles Welty, Relators, v. L. A. Vories, Judge of the Circuit Court of Buchanan County

No. 32684

Supreme Court of Missouri

June 27, 1933

Writ denied.

Richard S. Duncan for relators.

(1) Mandamus is proper remedy to compel allowance of appeal. Hall v. Audrain County Court, 27 Mo. 329; State ex rel. Partridge v. Lewis, 71 Mo. 170; In re Campbell, 19 S.W.2d 752. (2) One may be allowed to become a defendant to prevent injustice. State to use v Hudson, 86 Mo.App. 501. (3) Right to appeal should be liberally construed. Hurley v. Universal Clay Co., 213 S.W. 28. An appeal being the creature of the statute, the object to be subserved being to get at the very right of the cause, statutes pertaining to procedure are entitled to a liberal construction, and courts should not be prone to plant thorns in the path of appeal. Stid v. Mo. Pac. Ry Co., 109 S.W. 665. (4) Where public interests are involved, and public funds are about to be dissipated for an illegal purpose, a single taxpayer may maintain an action for himself and all other taxpayers in the city to restrain the illegal acts complained of, without being required to show at the trial the extent of the damage which he may sustain should an injunction be refused. Civic League of St Louis v. St. Louis, 223 S.W. 891. Taxpaying citizens, residents in a drainage district, are legally entitled to prosecute, on behalf of themselves and other taxpayers similarly interested, an action to cancel agreement by the county court and treasurer designating a depositary of drainage district funds and to enjoin disposal of such funds pending suit. Harris v. Langford, 211 S.W. 19. Taxpayer may annul illegal acts of the county court. Newmeyer v. Railroad Co., 52 Mo. 81. Taxpayer may attack the validity of unpaid county warrants for bridges constructed under a void contract. Hillside Securities Co. v. Minter, 254 S.W. 188. Taxpayers alleging themselves aggrieved and appealing from the judgment in a suit by others to have declared null a law providing for the holding of an election to determine whether new territory shall be annexed to a city have sufficient interest to appeal. Mulhaupt v. Shreveport, 126 La. 780, 52 So. 1023. (5) Every person aggrieved includes every person whose rights were in any respect concluded by the judgment. Sureties who are concluded by the judgment against the principal are aggrieved. Nolan v. Jones, 18 S.W. 1107. An owner, who has been made a party to a mechanic's lien case, is entitled to appeal from a judgment in favor of a subcontractor subjecting his premises to the lien. Hilliker v. Francisco, 65 Mo. 598. A surety in a cost bond may appeal from the judgment against the principal alone, for he is aggrieved thereby. Calhoun v. Gray, 131 S.W. 478. It is right and just that any person whose interests are injuriously affected and concluded by a judgment should have the right of appeal. Nolan v. Jones, 18 S.W. 1107; In re Switzer, 98 S.W. 461. (6) An order granting a motion to substitute a third person as plaintiff in a foreclosure suit upon the ground that he had become vested with all the rights and cause of action of plaintiff, which order was not opposed, was a binding adjudication upon that point. Smith v. Zalinski, 94 N.Y. 519; Mahr v. Norwich Union Fire Ins. Society, 127 N.Y. 452, 28 N.E. 391. (7) Where one voluntarily permits one to become a party to a proceeding below, he cannot deny that he was a party or question the regularity, propriety or manner in which he became one. Gill v. Harris, 24 S.W.2d 671.

Brown, Douglas & Brown, Louis V. Stigall and Alva F. Lindsay for respondent.

(1) One whose individual rights are not involved in pending litigation, against whom no relief is sought, has no right in Missouri to intervene or become a party to the litigation. Zeitinger v. Hardagine-McKittrick Dry Goods Co., 298 Mo. 461, 250 S.W. 913; State ex inf. May v. Railroad Co., 193 S.W. 932; Browning v. Hilig, 69 Mo.App. 594; Boyer v. Hamilton, 21 Mo.App. 520; Monticello Building Corp. v. Monticello Inv. Co., 52 S.W.2d 550. (a) The relators, whose only interest in this litigation is as taxpayers of the defendant, County of Buchanan, have no such interest in the litigation as will entitle them to intervene and defend; on the contrary, just as in the case of stockholders of a private corporation, they have no right to intermeddle and interfere with the discretion of the duly constituted corporate officers in the conduct of litigation affecting the corporation, except upon a showing that the interests of the corporation are jeopardized by the litigation, either because the corporation has already defaulted in making a legitimate and necessary defense, or because it has been requested by the stockholders (or taxpayers) to make the proposed defenses and has refused to do so. 5 McQuillin, "Municipal Corporations," sec. 2583; 44 C. J., secs. 4552, 4596; 6 Fletcher, Encyclopaedia of Corporations, sec. 4055, pp. 6877-8, 6882-3; 3 Cook on Corporations (7 Ed.) sec. 750; Meyer v. Bristol Hotel Co., 163 Mo. 69, 63 S.W. 96; Grand Rapids v. Consumers Power Co., 216 Mich. 409, 185 N.W. 852; Eggers v. Natl. Radio Co., 281 P. 58; City of Memphis v. Dean, 8 Wall. 64, 19 L.Ed. 326; Bronson v. LaCross Railroad Co., 2 Wall. 283, 17 L.Ed. 725; Atlantic Refining Co. v. Port Lobos Petroleum Corp., 280 F. 939; State v. Railway Co., 15 Fla. 726; O'Connell v. Pacific Gas & Electric Co., 19 F.2d 460; Princeton v. Princeton Electric Light, etc., Co., 166 Ky. 730, 179 S.W. 1074; Land, Log & Lumber Co. v. McIntyre, 100 Wis. 245, 75 N.W. 964; Kentucky-Tennessee L. & P. Co. v. City of Paris, 48 F.2d 795. (b) The primary reason why taxpaying citizens of a municipality or of a private corporation cannot ordinarily interfere with the defense of actions against the corporation is that their interests being already represented by the duly constituted corporate officers, they have no right to interfere with such representation unless the corporate authorities arbitrarily refuse to protect the ultimate interests of the stockholders or taxpayers, or collude with the plaintiff in fraud of the rights of the stockholders or members. 47 C. J. secs. 198, 207; Conlee v. Clay City, 31 Ky. L. Rep. 533, 102 S.W. 862; O'Connell v. Pacific Gas Co., 19 F.2d 460; Dunn v. Long Beach Land & Water Co., 144 Cal. 605, 46 P. 607. (c) The right of taxpayers to interfere with the authority of the county court in administering the business affairs of the county and prosecuting and defending suits with respect thereto (except by proceeding in equity) is limited to concerted action for that purpose instituted by not less than fifty "resident, solvent and responsible taxpaying citizens," and inasmuch as the six relators were unable to induce sufficient other taxpaying citizens to join with them to make up the number required, they were not entitled to be admitted in the suit of Mohler v. County of Buchanan. R. S. 1929, sec. 12110; Denny v. Jefferson County, 272 Mo. 436, 199 S.W. 255. (2) A mere interloper, not a necessary party to an action, or one who has been admitted to be heard merely by courtesy and not of right, is not entitled to appeal from a judgment which does not run against him or affect any right, personal and peculiar to him. Such a person is not a "party aggrieved" by a judgment and entitled to appeal therefrom. R. S. 1929, sec. 1018; Thomas v. Elliott, 215 Mo. 598, 114 S.W. 987; State ex rel. v. Talty, 139 Mo. 379, 40 S.W. 942; Leahy v. Trust Co., 247 S.W. 396; McMurray v. Bank, 74 Mo.App. 394; Chandler v. Railroad Commissioners, 141 Mass. 208, 5 N.E. 509; Shock v. Berry, 285 S.W. 122; Othenin v. Brown, 66 Mo.App. 318; Chicago v. Chicago Rapid Transit Co., 284 U.S. 577, 76 L.Ed. 501.

OPINION

Tipton, J.

This is an original proceeding in mandamus to compel the respondent, one of the judges of the Circuit Court of Buchanan County, Missouri, to allow the relators, six taxpaying citizens of Buchanan County, an appeal from a judgment against that county on three thousand one hundred and eleven (3,111) warrants issued by the county. The respondent, before whom the warrant suit was pending, admitted these taxpayers to be represented by counsel and to be heard in the trial of the suit. After the judgment in the suit was rendered, these relators filed a motion for a new trial and an affidavit for appeal. The respondent overruled the motion and denied the relators an appeal. The respondent filed in this court his return. The relators filed a motion for a peremptory writ upon the admissions and allegations of the return, which is in effect a motion for judgment on the pleadings and, of course, the statements in the respondent's return will be taken as admitted to be true.

The facts as shown by the return are that Harry H. Mohler, as assignee of 3,112 warrants issued by the County of Buchanan in the years 1929 and 1930, filed his petition against the County of Buchanan in as many counts. In each of the counts he sought to recover judgment for the amount of the indebtedness evidenced by the county warrant described therein, with interest from date of protest of the warrant. This cause of action was returnable to the May Term, 1932. On May 4, the county, by its attorneys, filed its answer. Before the beginning of the May Term, counsel appearing for the relators in this proceeding filed a motion on behalf of fifty-five individuals, who claimed to be resident taxpayers of Buchanan County, asking to be permitted to become defendants in the suit of Mohler v. Buchanan County. All of the persons named as applicants in that motion later withdrew with the exception of these six relators. After the filing of the...