State v. Cook

• Decision Date: 06 February 1918
• Docket Number: No. 2074.,2074.
• Citation: 201 S.W. 361
• Parties: STATE ex rel. HENTSCHEL v. COOK et al.
• Court: Missouri Court of Appeals

201 S.W. 361

STATE ex rel. HENTSCHEL v. COOK et al.

No. 2074.

Springfield Court of Appeals. Missouri.

February 6, 1918.

Rehearing Denied March 14, 1918.

Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Mandamus by the State of Missouri, on the relation of G. F. Hentschel, against A. J. Cook, John Pennel, and others. Motion to dismiss overruled, motion of defendant Pennel for a change of venue denied, judgment for relator, and defendants appeal. Affirmed.

See, also, State ex inf. Burges ex rel. Marbut v. Potter (Sup.) 191 S. W. 57.

T. D. Steele, of Monett, for appellants. I. V. McPherson, of Aurora, and J. A. Potter, of St. Louis, for respondent.

FARRINGTON, J.

This is an appeal from an order granting a peremptory writ of mandamus ordering the issuance of a warrant by the appellants in the sum of $1,228.41, drawn on the building fund of what was known as consolidated school district No. 1, Barry county, Mo., in favor of the relator, and ordering appellant Pennel, who appeared to be the treasurer of said district, to pay the same on presentation by the relator.

The Legislature in 1913 passed what is commonly called the Buford Act, under which consolidated school district No. 1, Barry county, Mo., purported to have been organized in June, 1913. In November, following, there was instituted in the Barry circuit court a quo warranto proceeding against the directors to oust them on the ground that the district had not been organized in compliance with the law. The then directors were L. D. Potter, M. G. Williams, J. P. Pennel, M. F. Black, J. A. Williams, and F. M. Reynolds. This quo warranto proceeding went to the circuit court of Greene county on change of venue, where on March 21, 1914, a judgment was entered, ousting said directors and holding that the district had never been legally organized. An appeal was taken to the Supreme Court which affirmed that judgment on December 20, 1916. State ex inf. Burges ex rel. Marbut v. Potter et al., 191 S. W. 57.

About a month after the quo warranto proceeding was instituted in the circuit court of Barry county, G. F. Hentschel entered into a contract with the purported directors named in the preceding paragraph, whereby for a consideration of $3,879.50 Hentschel was to construct a high school building. He was paid $2,847. The contract also called for some other items aggregating about $200, so that on April 27, 1914, there remained unpaid about $1,233. This not being paid, Hentschel filed suit to recover it in the circuit court of Barry county. It is alleged and not denied that the school directors took a change of venue in this contract suit to the circuit court of Jasper county where it was tried at the June term, 1915, judgment being rendered for Hentschel for $1,233, the case having been submitted on an agreed statement of facts. As the men who are appellants in this court were elected as directors in 1914, they were before the circuit court of Jasper county in the contract case, as it was not tried until the June term, 1915. In the agreed statement of facts in that contract case it was set forth that the district had received, under the provision of section 7 of the Buford Act, from the state of Missouri the sum of $1,228.41, being one-fourth of the total cost of the building and equipment erected and furnished by Hentschel under said contract, said sum being given the district by the state for the purpose of paying one-fourth the said cost, and that said district had said sum in its treasury in the building fund. The defendants in this contract case appealed to this court, where for sufficient reason the appeal was dismissed. Hentschel had an execution issued and delivered to the sheriff of Barry county, and it is alleged and not denied that said sheriff returned the same to the circuit court of Jasper county unsatisfied. It may be remarked at this place that the appellants in the mandamus case now at bar state that if a judgment was rendered by the circuit court of Jasper county in the contract case, and if an execution was issued out of that court on such judgment and was returned unsatisfied, evidence of such facts was not introduced in the mandamus proceeding. As the mandamus proceeding was tried by the same court and judge that tried the contract case, that judge doubtless took judicial notice of the judgment, issuance of execution, and return on file in his own court. Moreover, specific allegations covering these steps were contained in the petition for the writ of mandamus and were not and are not disputed; hence would be treated as conceded.

As stated, on December 20, 1916, the Supreme Court affirmed the judgment of the circuit court of Greene county in the quo warranto proceeding, ousting the directors from office and declaring the district illegally organized. Ten days later Hentschel again appeared in the circuit court of Jasper county, this time armed with a petition for a writ of mandamus, setting up the main facts we have detailed. It is alleged in this petition, and not denied anywhere in the record, that Hentschel had demanded of the defendants as directors of the district that they cause a warrant in his favor to be issued on the treasury of the district payable out of the building fund, and that defendants had refused to comply. It is then alleged and not disputed that Hentschel has no other adequate remedy. The prayer was for the relief which (we stated in the first paragraph of this opinion) was given. The alternative writ was issued.

On the return date the defendants appeared only for the purpose of filing a motion to dismiss, setting up that it appears on the face of the petition and alternative writ as well as the return of the sheriff of Barry county, Mo., thereon, that the defendants are all citizens of and residents of Barry county, and that the circuit court of Jasper county had no jurisdiction over them. This was overruled.

Defendants then filed their return, still protesting the jurisdiction of the court over their persons. In the return the facts concerning the quo warranto proceeding are set forth, and it is alleged that Hentschel entered into said contract a month after that proceeding was instituted with full knowledge of its pendency. As to the $1,228.41 paid by the state auditor in April, 1914, while the quo warranto proceeding was pending on appeal, the return sets forth that this sum was sent by the state auditor under a misapprehension of the facts and without authority of law; that it is and has been held by Pennel (who was treasurer of the district) since the decision of the Supreme Court in the quo warranto case in trust for the state of Missouri to whom it justly belongs; that said sum is not and was not at the time of filing this mandamus suit in the hands of defendant directors nor under their care or control; that said fund cannot be made available for the purpose of paying a judgment on which the alternative writ is based; and that the state by and through its Attorney General has made a formal demand on such defendants for the return of this money to the state on the ground that the payment of the same to the district was made under a misconception of the facts and a mistake of law; wherefore it is prayed that the alternative writ be quashed.

Relator in the reply denied that Pennel held this money as trustee for the state, and asserted that the defendants have the care and control of said fund; alleges that it was put in their hands by the state for the purpose of paying plaintiff one-fourth the cost of the building and equipment; denies that it was paid by the state under any misapprehension of facts or mistake law, and avers that it is now held by Pennel under the control of defendants in trust to pay relator's judgment; sets up that defendants being the qualified and acting directors of the district are estopped to deny the corporate existence of the district and estopped to plead its dissolution as a reason for not paying relator's judgment; and alleges that dedefendants are estopped to assert that they hold the fund as trustee for the state, having received the same for the express purpose of paying plaintiff's claim, or to assert that the fund belongs to any one other than relator, or that it was paid by the state under a misapprehension of facts or mistake of law.

Pennel was the only witness used. It appears that he had been a director since the attempted organization of the district. When he testified that he was the treasurer of the board and had had this $1,228.41 since December, 1914, it was discovered that he had not been named as a party defendant in this proceeding, and that his name nowhere appeared in the pleadings. By leave of court thereupon, obtained over the exception of the defendants, he was made a party defendant by interlineation, was served with a new alternative writ, and given time to make a return.

On Pennel's return date he filed a motion for a change of venue, charging prejudice on the part of the judge and that relator had an undue influence over the mind of the judge, which was denied. Pennel then filed his return, likewise protesting the jurisdiction of the court over his person, and making practically the same allegations that were set up in the original return, concluding with the averment that he should not be compelled to pay the money to relator without the state treasurer first being made a party to this action so that he could have a day in court and be fully heard.

It appears that after the circuit court of Greene county sustained the quo warranto proceeding there was never any school held in the building. Pennel kept the $1,228.41 in the depository of the district drawing 5 per cent. interest, which interest he says was divided among the five old districts, the board having ordered...