State ex rel. Rebenack v. Foerstel

• Decision Date: 19 June 1876
• Citation: 2 Mo.App. 497
• Parties: STATE OF MISSOURI, ex rel. AUGUST REBENACK, Respondent, v. MICHAEL FOERSTEL et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 497

STATE OF MISSOURI, ex rel. AUGUST REBENACK, Respondent,

v.MICHAEL FOERSTEL et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 19, 1876.

Plaintiff obtained judgment against township board of education, as trustee to use of sub-district No. 3, on suit commenced under school law of 1870. Before judgment the school law of 1874 was enacted, vesting the title to the school property, formerly held by the township board as trustee of sub-district No. 3, in district No. 6, which was incorporated for that purpose, and succeeded to all the rights and property of sub-district No. 3. Held, that mandamus would lie to compel the board of directors of district No. 3 to direct their clerk to draw his warrant on the county treasurer, in favor of plaintiff, for the amount of said judgment and costs.

APPEAL from St. Louis Circuit Court.

Affirmed.

Lighthizer, for appellants, cited: Wag. Stat. 123, secs. 7, 8, 19, 24, 27; Lewis v. Barclay, 35 Cal. 213; Ex parte Ostrander, 1 Denio, 682; Ex parte Newman, 14 Wall. 165; Perry on Trusts, secs. 873, 874; People v. Dubois, 33 Ill. 140; People v. Breman, 39 Barb. 651; People v. Thompson, 25 Barb. 73.

Aug. Rebenack, for respondent, cited: Puterbaugh v. Township Board, 53 Mo. 472; Wag. Stat. 295, secs. 36, 31.

BAKEWELL, J., delivered the opinion of the court.

This was an application for a mandamus to compel defendants, as board of directors of school district No. 3, township 45, St. Louis county, to direct the clerk of said board to draw his warrant upon the treasurer of St. Louis county, in favor of petitioner, for the sum of $412.60, interest and costs, being the amount of a judgment recovered by plaintiff, on March 30, 1874, against the township board of education, as trustee to the use of sub-district No. 3, for damages arising from relator's unlawful discharge as teacher of said sub-district No. 3 of said township.

The contract of relator with the board of directors was made, his cause of action accrued, and suit was commenced by him under the revision of the school law of this State in force in 1870. Judgment was obtained a few days after the enactment of the school law of 1874.

Appellants, in their return, admit that judgment was obtained as alleged by the relator, but deny that he had a sufficient cause of action; say that the sub-district No. 3 had a valid defense to his claim; and say that it is not a party to the judgment against the township board of education.

The Circuit Court, on hearing, found all issues in favor of relator, and granted a peremptory writ. A motion for rehearing having been overruled, the cause is brought here by appeal.

The contract with relator was made with the local directors of the sub-district, under the law of 1870. They were, under the law, the persons authorized to contract with teachers, and having the care and keeping of the property of the sub-district. But the title to all the school property was then, by law, vested in the township board of education, which...