Union Trust & Savings Bank v. City of Sedalia, No. 24080.

CourtMissouri Supreme Court
Writing for the CourtGraves
Citation254 S.W. 28,300 Mo. 399
PartiesUNION TRUST & SAVINGS BANK v. CITY OF SEDALIA
Decision Date28 July 1923
Docket NumberNo. 24080.
254 S.W. 28
300 Mo. 399
UNION TRUST & SAVINGS BANK
v.
CITY OF SEDALIA
No. 24080.
Supreme Court of Missouri, in Banc.
July 28, 1923.
Motion for Rehearing Overruled August 14, 1923.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

Action by the Union Trust & Savings Bank against the City of Sedalia. Judgment for defendant, and plaintiff appeals. Affirmed.

Montgomery & Rucker, of Sedalia, and. Lubke & Lubke and Leahy, Saunders Walther, all of St. Louis, for appellant.

Paul Barnett, of Sedalia, for respondent.

GRAVES, J.


This is an action upon fifteen bonds issued by the city of Sedalia on July 7, 1899. Plaintiff (appellant) is the alleged owner and holder of these bonds. The bonds are in the denomination of $1,000 each, and the petition is therefore in fifteen counts—a count for each bond.

The counts are identical except as to the number of the particular bond mentioned in the different counts. The case passed off upon a demurrer to the petition, and a statement of the contents of these instruments would not be shorter than the pleadings themselves, as counsel have pleaded with brevity. The first count of the petition reads:

"Plaintiff, for the first cause of action, states:

"I. That the city council of the said city of Sedalia, acting under the provisions of section 70 of an act of the Thirty-Seventh General Assembly of the state of Missouri in regard to cities of the third class, duly approved, April 19, 1893 (Laws 1893, p. 65), which said section is now section 8275 of the Revised Statutes of Missouri 1919, did on June 19, 1809, duly enact an ordinance entitled "An ordinance providing for the issuing of fifteen current revenue bonds of the city of Sedalia for the year 1899, and providing for the payment thereof," which said ordinance was duly approved by the mayor of said city on June 20, 1809, and provided among other things that the mayor and city clerk should sign and execute and attest fifteen bonds of the city of Sedalia, Mo., of the denomination and par value of $1,000 each, numbered, respectively, 1 to 15, which bonds should bear interest at the rate of 6 per cent. per annum payable semiannually, and should be dated July ___, 1899, and due and payable one year after date, and should be payable to ___, or bearer, and that said bonds, upon being executed, should be sent by the city clerk to the auditor of the state of Missouri for registration, in accordance with the statutes in such cases made and provided, and, when properly registered, should be delivered to the city treasurer, who should be charged therewith, and that the city trees urer was authorized to sell said bonds for the less than their face value and that sufficiem. taxes collected for current revenue for the year 1809 should be set aside by the city treasurer as security for the payment of said bonds.

"II. That after the enactment and approval of said ordinance of June 19, 1809, and pursuant to the provisions thereof, W. C. Overstreet, the mayor of said city, and John W. Hartshorn, the clerk of said city, duly signed and executed a certain bond of said city, dated

254 S.W. 29

July 7, 1899 (a duly verified copy of which is herewith filed) numbered 1, wherein the said city, the defendant herein, under the hand of its said mayor and city clerk, and attested by its corporate seal, promised pay to * * * or bearer, at the counter of the Merchants' Laclede National Bank of the city of St. Louis, state of Missouri, the sum of $1,000, together with interest at the rate of 8 per cent. per annum; the principal to be payable at the end of one year and the interest in equal installments at the end of six and twelve months from the date thereof on presentation of the coupons thereto attached. That said bond further recited that it is issued under and in pursuance of section 70 of an act of the Thirty-Seventh General Assembly of the state of Missouri of 1803, entitled 'An act to repeal article 4, of chapter 30, of the Revised Statutes of Missouri of 1889, with all amendments thereof, said article being entitled "cities of the third class," and to enact in lieu thereof a new article, providing for the government of cities of the third class,' approved April 19, 1803, for the purpose of anticipating a portion of the current revenue for the fiscal year 1899; and that this bond is one of fifteen bonds of the denomination and par value of $1,000 each, numbering from 1 to 15, this being No. 1; and that the aggregate of said fifteen bonds did not exceed in amount one-half of said revenues, and that its payment is secured by an ordinance directing that there be set apart, out of the revenue of the city for the year 1899, a sum sufficient to nay the principal and interest thereof.

"III. That the said bond was duly sent by the city clerk of said city to the auditor of the state of Missouri, and that his certificate of registration under his hand and seal of his office was attached and appended to said bond, and that said bond and sell said certificate are hereto attached and made a part of this petition, as fully as though set out in full in this petition.

"IV. That the said bond was duly delivered to the city treasurer of the said city of Sedalia, who was duly charged therewith, and that the said city treasurer, acting under the provisions of the said ordinance of June 19, 1899, did, on July 30, 1899, sell said bond for not less than its face value, and it received the purchase money thereof and did deliver the said bond to the buyer, and that the said purchase money was duly received by the said city of Sedalia.

"V. That at the time of the sale and delivery of the said bond and of the receipt of the purchase money, the said city of Sedalia had not, during the fiscal year beginning July 1, 1800, and ending June 30, 1909, become indebted in any manner or for any purpose, including said bond issue of $15,000, in an amount in excess of the income and revenue of the said city provided for the said year.

"VI. That the amount of the said bond issue of $15,000, added to the amount of all bonds of the said city issued or sold prior thereto during the fiscal year beginning July 1, 1899, did not exceed one-half of the current revenue of the said city for the said fiscal year, and that said bond No. 1 recites upon its face that the aggregate of said fifteen bonds does not exceed in amount one-half of said revenue.

"VII. That the interest was paid upon the paid bond at the rate of per cent. per annum until July 7, 1907, and that on the 7th days of January and July in each succeeding year thereafter until January 2d, 1912, payments were made on account of the said interest on the said bond of $20 each, but that the balance of said interest, together with the principal of said bond, is now due and payable.

"VIII. That the plaintiff is the owner and holder of the said bond, and that the same is now due, owing, and unpaid. That payment thereof has been duly demanded and that the defendant has failed and neglected to pay the same.

"Wherefore the plaintiff prays judgment for the sum of $1,000, together with the interest remaining due and unpaid upon the said bond as aforesaid, and for costs."

To this count was attached a verified and sworn copy of bond No. 1. Recitals in the bond may have to be reverted to in the course of the opinion, but need not be set out in full.

The demurrer to the petition is as follows:

"Defendant demurs to plaintiff's petition, and every count thereof, for the following reasons:

"(1) Because it is alleged in paragraph 5 of every count of the petition that at the time of the sale and delivery of the said bonds and of the receipt of the purchase money, the city of Sedalia had not, during the fiscal year beginning July 1, 1899, and ending June 30, 1900, become indebted in any manner or for any purpose, including said bond issue of $15,000, in an amount in excess of the income and revenue of the said city provided for the said year.

"(2) Because in paragraph 6 of every count of the petition it is alleged that the amount of said bond issue, added to the amount of all bonds of the city issued or sold prior thereto, during the fiscal year beginning July 1, 1899, did not exceed half of the current revenue of said city for the said fiscal year.

"(3) Because it is nowhere alleged in any count of the petition that the city of Sedalia had not, during the year in which the bonds were authorized, nor during the year in which the bonds were sold and delivered, become indebted in an amount in excess of the income and revenue of the city provided...

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8 practice notes
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...of Section 12 of Article 10 of the Constitution. Section 35 of the act is in violation of said Section 12. Union Bank v. City of Sedalia, 300 Mo. 399; State ex rel. Christian County v. Gordon, 265 Mo. 181; Steinbrenner v. St. Joseph, 285 Mo. 318. (10) Sections 7 and 31 authorize the levy of......
  • Ostmann v. Ostmann et al., No. 26302.
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1943
    ...v. Benton (Kentucky) 87 S.W. 291; Geneva Cooperage Co. v. Brown (Ky.), 98 S.W. 279; Union Trust and Savings Bank v. City of Sedalia (Mo.), 254 S.W. 28; Hoffman v. U.S., 52 Fed. (2d) 269; Irving v. Irving, 209 Ill. App. 318. (b) When Henry Ostmann provided in his will that his land should no......
  • State ex rel. Rothrum v. Darby, No. 36099.
    • United States
    • United States State Supreme Court of Missouri
    • March 6, 1940
    ...or contract debts,' namely, `A year beginning January 1st and ending December 31st.' [Union Trust & Savings Bank v. City of Sedalia, 300 Mo. 399, 254 S.W. 28, 32, and cases cited; see, also, Dennig v. Swift & Co., 339 Mo. 604, 98 S.W. (2d) 659.] Statutes making the school year begin......
  • State ex rel. State Highway Commission v. City of St. Louis, No. 38235
    • United States
    • Missouri Court of Appeals
    • October 31, 1978
    ..."year" as used in the constitution has been determined to mean calendar year. Union Trust & Savings Bank v. City of Sedalia, 300 Mo. 399, 254 S.W. 28, 31, 32 (1923). We, however, review the issue here as it is raised by the Commission because the result would be the 7 A dissen......
  • Request a trial to view additional results
8 cases
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...of Section 12 of Article 10 of the Constitution. Section 35 of the act is in violation of said Section 12. Union Bank v. City of Sedalia, 300 Mo. 399; State ex rel. Christian County v. Gordon, 265 Mo. 181; Steinbrenner v. St. Joseph, 285 Mo. 318. (10) Sections 7 and 31 authorize the levy of......
  • Ostmann v. Ostmann et al., No. 26302.
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1943
    ...v. Benton (Kentucky) 87 S.W. 291; Geneva Cooperage Co. v. Brown (Ky.), 98 S.W. 279; Union Trust and Savings Bank v. City of Sedalia (Mo.), 254 S.W. 28; Hoffman v. U.S., 52 Fed. (2d) 269; Irving v. Irving, 209 Ill. App. 318. (b) When Henry Ostmann provided in his will that his land should no......
  • State ex rel. Rothrum v. Darby, No. 36099.
    • United States
    • United States State Supreme Court of Missouri
    • March 6, 1940
    ...or contract debts,' namely, `A year beginning January 1st and ending December 31st.' [Union Trust & Savings Bank v. City of Sedalia, 300 Mo. 399, 254 S.W. 28, 32, and cases cited; see, also, Dennig v. Swift & Co., 339 Mo. 604, 98 S.W. (2d) 659.] Statutes making the school year begin......
  • State ex rel. State Highway Commission v. City of St. Louis, No. 38235
    • United States
    • Missouri Court of Appeals
    • October 31, 1978
    ..."year" as used in the constitution has been determined to mean calendar year. Union Trust & Savings Bank v. City of Sedalia, 300 Mo. 399, 254 S.W. 28, 31, 32 (1923). We, however, review the issue here as it is raised by the Commission because the result would be the 7 A dissen......
  • Request a trial to view additional results

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