State ex rel. R-1 School Dist. of Putnam County v. Ewing

• Decision Date: 06 June 1966
• Docket Number: No. 24354,R--1,24354
• Citation: 404 S.W.2d 433
• Parties: STATE of Missouri ex rel.SCHOOL DISTRICT OF PUTNAM COUNTY, Missouri, Stewart Pratt, Melvin Sparks, Robert Rockwood, W. E. Ross, Gerald Brown, Adrien E. Lewis, the Official Board, Relators, v. Hon. J. Doerr EWING, as Transferred Judge of the Circuit Court of Putnam County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 433

404 S.W.2d 433

STATE of Missouri ex rel. R--1 SCHOOL DISTRICT OF PUTNAM

COUNTY, Missouri, Stewart Pratt, Melvin Sparks,

Robert Rockwood, W. E. Ross, Gerald

Brown, Adrien E. Lewis, the

Official Board, Relators, v. Hon. J. Doerr EWING, as Transferred Judge of the Circuit

Court of Putnam County, Missouri, Respondent.

No. 24354.

Kansas City Court of Appeals, Missouri.

June 6, 1966.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 29, 1966.

V. C. Rose, Rose & Brown, Trenton, for relators.

William Y. Frick, Frick & Frick, Kirksville, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

BLAIR, Judge.

This prohibition proceeding originated in this court. Relators are the official board of R--1 School District of Putnam County and respondent, Honorable J. Doerr Ewing, Judge of the 4th Judicial Circuit, is Special Judge of the Circuit Court of Putnam County by transfer order of the Supreme Court for the trial of a mandamus proceeding in which the relators in that proceeding sought a peremptory writ to compel the former directors of Worthington District No. 69 of Putnam County, as respondents, to deliver to rrelators all property, books, papers, records and monies of Worthington School District No. 69. Justification for the mandamus proceeding was alleged to be an election held on July 28, 1964, approving a reorganization which absorbed Worthington School District No. 69 into R--1 School District and the subsequent refusal of Worthington School District to deliver to R--1 School District all of its property, books, papers, records and monies.

The respondent judge issued an alternative writ of mandamus and subsequent pleadings of the parties put the proceeding at issue. Simultaneously with their return to the alternative writ respondents filed a counterclaim in two counts against relators alleging in substance, in each count, that a number of students of former Worthington School District and lawfully been assigned by the Putnam County Superintendent of Schools to a Schuyler County School District, Queen City No. 2, and that relators had refused to pay Queen City No. 2 the customary and legal charges for tuition and transportation of these pupils and praying for a declaratory judgment that the relators were legally required to pay these charges. We see no need for further particularization of the allegations of the counterclaim. We notice that originally respondents also included these same claims in their return to the alternative writ and that on motion they were stricken from the return by ther court.

To the counterclaim relators filed a motion to strike which was overruled by respondent judge. Thereupon they filed a general denial of the allegations of the counterclaim, reserving the right later to urge error in the ruling of respondent judge on the motion to strike.

The mandamus proceeding was tried and adjudged first, with the counterclaim standing in abeyance. Upon motion for summary judgment filed by relators, the respondent judge found that they were entitled to a peremptory writ of mandamus requiring the directors of former Worthington School District immediately to turn over all property, books, papers, records and monies of such former district and thereupon he issued a peremptory writ in conformity with his finding. This judgment has long since become final. The briefs admit, or, at least, do not controvert, that relators have taken to step by any method, contempt or otherwise, to enforce compliance with the peremptory writ. There is no suggestion that the respondent judge has withheld or stayed execution of the writ.

Following entry of the judgment in the mandamus proceeding, the respondent judge announced he proposed to entertain and determine the issues raised by the counterclaim at a future date. The relators in the mandamus proceeding then filed an application in this court for a writ of prohibition commanding the respondent judge to refrain from proceeding to entertain or determine the issues raised by the counterclaim, countending that there is no authority in the Civil Rules or elsewhere in our law for entertaining and determining a counterclaim in a mandamus proceeding and that for respondent judge to do so would be an action in excess of his jurisdiction. We issued our preliminary rule to respondent judge, in accordance with the application for prohibition, commanding him to 'refrain from hearing, trying or determining' the counterclaim and to show cause why the preliminary rule should not be made absolute. In due course, respondent judge made return asserting that he had jurisdiction to entertain and determine the issues raised by the counterclaim. Relators denied this assertion by reply and this prohibition proceeding stands at issue.

Squarely presented is the question whether the respondent judge has jurisdiction, by force of the Civil Rules, or by law elsewhere in our jurisprudence, to entertain and determine the counterclaim which was filed in the mandamus proceeding. By constitutional authority granted in 1945 the Supreme Court was authorized to establish rules of practice and procedure for all courts, superseding all exising court rules and statutes in conflict with such rules, with the right reserved to the General Assembly to annul or amend any rule established by that court 'by a law limited to the purpose.' Sec. 5, Art. V, Const. of Mo. 1945, V.A.M.S. Pursuant to this authority the Supreme Court established 'Rules of Civil Procedure', numbered 41 to 102, in 1959. Civil Rule 41.02, V.A.M.R., provides: 'Rules--When Applicable. Unless otherwise hereafter provided by statute the Rules of Civil Procedure shall govern the practice and the procedure in all suits and all proceedings of a civil nature, legal, equitable and special in the following courts: Supreme Court, Courts of Appeals, Circuit Courts, and Courts of Common Pleas.'

Since the Supreme Court in establishing the Civil Rules as the law governing practice and procedure in the courts exercised a power always committed to the General Assembly prior to 1945, we believe that certain canons of construction employed in ascertaining the meaning of enactments of that body should apply alike in ascertaining the meaning of the Civil Rules established by the Supreme Court. With this in mind, we will paraphrase and apply, in the course of this opinion, certain canons of construction we believe applicable in determining the meaning of Civil Rule 41.02 and relevant to the question we must decide.

The historical background of this rule, and the evolution in the law which preceded its establishment, are proper and relevant subjects of inquiry in arriving at its meaning. State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399; Kansas City v. Travelers Ins. Co., Mo.App., 284 S.W.2d 874. Searching for the meaning of Civil Rule 41.02 we are authorized to examine the history of all prior civil codes enacted by the General Assembly and prior rules of the Supreme Court relating to the question before us as wlel as the decisions construing those codes and rules. Lemasters v. Willman, Mo.App., 281 S.W.2d 580; State v. Hanson, 234 Mo. 583, 137 S.W. 968; Memmel v. Thomas, 238 Mo.App. 403, 181 S.W.2d 168. We are entitled to presume that the Supreme Court in establishing the Civil Rules was acquainted with the history of those codes and rules and the decisions construing them. Mack Motor Truck Corp. v. Wolfe, Mo.App., 303 S.W.2d 697; Howlett v. Social Security Commission, 347 Mo. 784, 149 S.W.2d 806; Mo. Digest, Vol. 26, Statutes, k No. 212.

Prior to the establishment of the Civil Rules, mandamus had traditionally been characterized by our courts as an 'action at law' and as a 'legal remedy'. Horton v. Bourke, 344 Mo. 826, 129 S.W.2d 866; State ex rel. v. Bank of Conception, 174 Mo.App. 589, 163 S.W. 945; State ex rel. Kinneard v. Jackson County Court, Mo.App., 17 S.W.2d 572; Mo. Digest, Vol. 19, Mand., k No. 1. Mandamus had also been characterized by our courts as 'a special proceeding' and it unquestionably is such a proceeding. State v. Cook, Mo.App., 201 S.W. 361; State ex rel. Downs v. Kimberlin, Mo., 260 S.W.2d 552.

In Missouri, the comprehensive Field Code of Civil Procedure, adopted in 1849, and thereafter amended from time to time, continued to govern procedure in civil cases until 1943. One provision of the 1849 Code of Civil Procedure was Sec. 6, Art. XXX, Laws of Missouri 1849: 'Until the legislature shall otherwise provide, this act shall not affect proceedings upon mandamus * * *.' In 1854 the Supreme Court construed this provision as meaning exactly what it said: 'The code of practice does not apply to proceedings upon mandamus.' Smith v. St. Francois County Court, 19 Mo. 433. In 1855 the above section of the 1849 Code of Civil Procedure had disappeared from the Code and a new provision had been substituted. Sec. 22, Art. IX, Chapter 128, R.S.Mo.1855 read as follows: 'The provisions of this article shall extend * * * to all writs of mandamus * * * and to the proceedings thereon; * * *'. Art. IX, of Chapter 128, R.S.Mo.1955 applied only to amendments of pleadings and to no other provisions of the 1849 Code. Thereafter sporadic efforts of varying types were made to utilize provisions of the Civil Code in mandamus proceedings other than the article permitting amendments but they uniformly met judicial rejection. 'At the adoption of the practice act, in 1849, it was provided, by section 6 of article 30, that the act should not affect proceedings upon mandamus until otherwise provided. At the present time the article relating to amendments is in express terms made to apply to writs of mandamus; thus showing by clear implication that in other respects it does not apply. Hence we held in State (ex rel. Gordon) v. Burkhardt, 59 Mo. (75) 79, that the general provisions of the practice act allowing all persons having an interest in the suit to be made plaintiffs or defendant had no application to...