Village of Grandview v. McElroy

• Decision Date: 27 June 1928
• Citation: 9 S.W.2d 829,222 Mo.App. 787
• Parties: IN MATTER OF VILLAGE OF GRANDVIEW, APPELLANT, v. HENRY F. McELROY ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

9 S.W.2d 829

222 Mo.App. 787

IN MATTER OF VILLAGE OF GRANDVIEW, APPELLANT, v. HENRY F. McELROY ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

June 27, 1928

Appeal from the Circuit Court of Jackson County.--Hon. Thomas B Buckner, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

A. N Gossett and T. L. Robinson for appellant.

Fred A Boxley, county counselor for respondents.

FRANK, C. Williams, C., concurs. Trimble, P. J., absent.

OPINION

FRANK, C.

This is an appeal from an order and judgment of the circuit court of Jackson county sustaining respondents' motion to quash a writ of certiorari theretofore issued on the application of appellant.

Appellant's verified petition for certiorari alleges:

"Your petitioner, the village (or town) of Grandview (of Jackson county, Missouri), states and shows that it is now, and at all times herein stated and long prior thereto was, a municipal corporation, incorporated and existing as a town or village under and in accordance with the statutes of Missouri, being a town or village of less than five hundred inhabitants;

"That the respondents, Henry F. McElroy, as presiding judge, and Elihu W. Hayes and Harry S. Truman as associate judges, are and at all times herein stated were the judges of and composing the county court of Jackson county, Missouri, and respondent, Peter J. Kelly, is and so was the county clerk of Jackson county, Missouri, and, as such, the clerk of said county court;

"Your petitioner further alleges, states and shows that said county judges, composing the said county court, and with their clerk aforesaid have assumed to entertain jurisdiction and have proceeded to consider and enter a purported judgment or order in and an alleged proceeding in said county court upon a petition purporting to be a 'Petition of Taxpayers of the Village of Grandview to Diminish the limits of said Village of Grandview,' and which said petition was filed in said county court on October 6, 1923, and purports to be signed by or to have attached thereto a large number of names of persons in said petition alleged to be a majority of the taxpayers of said village of Grandview, and praying that an order and judgment be made diminishing the territorial limits of said village by excluding therefrom various and sundry tracts of lands, particularly described in the purported order of said county court, purporting to have been made on October 16, 1923, as hereinafter set out, to which part of this petition and description reference is here made, which said tracts of land are located within the territorial limits of said village and in said petition and application, so filed in the said county court, alleged each to contain more than five acres of land, and to be then used only for agricultural purposes;

"Your petitioner shows and states that in truth and in fact the said persons whose names are in fact signed to said petition by themselves were not and did not at the time of filing the petition, or at any time, constitute a majority of the taxpayers of said village, and that a large number of names so signed to said petition were in truth and in fact written thereto by other person or persons whose names are unknown to your petitioner and without authority from the real persons of such names, and the persons whose genuine signatures are signed to said petition were not and did not compose a majority of the taxpayers of said village or town of Grandview.

"Your petitioner further states and shows that several of said tracts of land described as separate tracts were not at said time of filing said petition, nor have they since been at any time, or either of them, tracts of land containing more than five acres, nor were they used only for agricultural purposes, although included within the corporate limits of said village;

"Your petitioner further shows that said petition, when filed, was accompanied with a paper writing purporting to be an application and to be signed by the owners of the hereinafter-described tracts of land and further purporting to be signed by the owners of separate lots in the tract of land described in said petition as 'all of Grandview Heights Resurvey, a subdivision of land in said county,' said subdivision consisting of thirty-three or more such lots, many of which were and are not tracts of five acres of land and were and are not used only for agricultural purposes either at the time of filing said petition or at any time since such filing;

"Your petitioner further shows that some of the names signed to said application are not the names of persons who owned the respective lots in Grandview, of which, in said application, they respectively purported to be the owners;

"Your petitioner further shows that no notice was ever published or posted or given in any manner whatsoever to your petitioner, or to its board of trustees or any of them nor to any of its officers or officials, of the filing of said petition and application or either of the same, nor of any intention to present the same to said county court, nor was any notice whatsoever so given of the making of the purported order or judgment thereon entered, as hereinafter stated, and your petitioner did not know or learn of the making of said order or judgment until after the termination and final adjournment of the October term, 1923, of said county court;

"Your petitioner further states and shows that nevertheless the said respondents, judges, as said county court assumed to entertain jurisdiction in said proceeding and to act and enter a certain judgment or order thereon, and the respondent clerk of said court proceeded to enter in the records of said court a certain order thereon and in said proceeding, all to-wit on October 16, 1923, at the October term, 1923, of said court, substantially in words and figures as herein set out, viz.: In the matter of the application of M. S. Wallace and others to diminish the limits of the village of Grandview in Jackson county, Missouri.

"The application of M. S. Wallace and other landowners to diminish the limits of the village of Grandview in Jackson county, Missouri, by excluding therefrom certain tracts of land as provided by section 8593 of the Revised Statutes of Missouri, 1919, coming on for hearing before this court and the court finding that said application is accompanied by a petition asking such changes as applied for in said application signed by a majority of the assessed tax-paying citizens of said village and that each of said tracts of land in said application set out contains five acres or more and that the same have been used and are used only for agricultural purposes and the court having been fully advised and informed in the premises finds, orders, adjudges and decrees that said tracts of land in said application set out be and each and all of the same are excluded from the corporate limits of said village of Grandview and the limits of said village of Grandview, Missouri, are diminished accordingly."

The petition then describes each separate tract of land that was excluded from said village and gives the name of the owner of each separate tract. After describing the land as above stated the petition then alleges:

"Your petitioner further states and shows that the lands described in said petition and by said entry purported to be excluded from the municipal limits of your petitioner comprise a large part, to-wit, one-fourth of the entire municipal territory or area of your petitioner.

"Your petitioner further states and shows that said assumption of jurisdiction by said county court and the judges and clerk thereof, composing the same, is without warrant of law because said court for the reasons aforesaid viz.: that said petition was not in truth and in fact signed by a majority of the taxpayers of said village and because many of said tracts of land so petitioned and applied for and attempted to be excluded by diminution of the limits of said village did not and do not contain five acres of land nor are or were the same used only for agricultural purposes, but were in truth and in fact, many of them less than five acres in area and used for ordinary village residence purposes, and for that some owners of some of said lands did not sign said application and that said proceeding was had without notice to this petitioner or its board of trustees or any of its officers or officials as to the presentation of said petition or of the consideration and action or either of the same to be by said court had in said proceeding, and said court is acting and has acted without power or jurisdiction in the premises and in excess of its lawful jurisdiction in the aforesaid particulars;

"Your petitioner further alleges that no appeal is authorized by law or permitted to this or any other court nor will any writ of error lie to such proceedings from this or any other court, although this court has by law superintending control of the judgments and orders of said county court and this petitioner is without remedy at law other than by the writ of certiorari herein prayed for;

"Your petitioner further shows and states that the appearance in the files and records with said county court of said purported petition, and application accompanying the same, to diminish the limits of your petitioner as an incorporated town or village, and the appearance upon the records of said county court of the aforesaid entry purporting to be an order or judgment of said county court diminishing the limits of your petitioner, is greatly harassing and hindering and will continue to harass and hinder and obstruct your petitioner in the performance of its public duties and in the collection of its lawful taxes and revenues assessed and to...