Waller v. Jones

• Citation: 262 S.W. 455,218 Mo.App. 131
• Parties: R. A. WALLER, as Mayor of Macon, Respondent, v. ROBERT JONES and JAMES E. ROBERTS, Appellants. *
• Decision Date: 26 May 1924
• Court: Court of Appeals of Kansas

262 S.W. 455

218 Mo.App. 131

R. A. WALLER, as Mayor of Macon, Respondent, v. ROBERT JONES and JAMES E. ROBERTS, Appellants. *

Court of Appeals of Missouri, Kansas City

May 26, 1924

Appeal from the Circuit Court of Macon County.--Hon. Vernon L Drain, Judge.

AFFIRMED.

Judgment affirmed.

Matthews & Jones and George N. Davis for respondent.

Lacy & Edwards for appellant.

OPINION

ARNOLD, J.

This is an injunction proceeding instituted by the Mayor of the City of Macon in the circuit court of Macon County, Mo., to restrain defendants from interfering with the equipment or employees of the fire department of said city and from loitering around the property where the fire-fighting equipment of the city was kept and maintained. A temporary restraining order was issued, defendants answered to the petition and filed a motion to dissolve the injunction, and thereafter on hearing before the court, the temporary injunction was made permanent. Defendants have appealed from said judgment.

The city of Macon is, and at the time of this action was, a city of the third class, its governing body consisting of a council of eight members, two being elected from each of the four wards into which the city is divided. At the time the present controversy arose there was one vacancy in the council, leaving seven members of that body.

The defendants Jones and Roberts had served as fire chief and assistant fire chief for periods of eleven and six years respectively. The term of office was one year, beginning June 6th. The evidence shows that on April 10, 1922, the council met in adjourned session and the mayor, plaintiff herein announced his list of committees, among which was the fire committee, composed of councilmen Maffrey, Grafford and Claus. At a meeting of the council on May 15, 1922, said Maffrey made a report for said committee, suggesting the appointment of Oscar Allen as fire chief and Ed Lunsford as assistant fire chief. The report was adopted by the council by a vote of 4 to 3, and thereafter on May 27th, a contract of employment was entered into whereby Allen and Lunsford were employed by the city to act as chief and assistant chief of the fire department for a period of one year beginning June 6, 1922, at salaries of $ 115 and $ 110 per month respectively. Said contract was signed by plaintiff as mayor and by W. H. Martin as city clerk, on behalf of the city, and by the said Allen and Lunsford.

The evidence further shows that at a meeting of the city council on June 5, 1922, at which the mayor presided, there was presented and read a petition signed by 301 citizens of the city of Macon, asking the council to reconsider its previous action and to employ Robert Jones and James Roberts, defendants herein, as heads of the fire department. On motion of Mr. Claus, member of the fire committee who previously had voted to employ Allen and Lunsford, a reconsideration of the vote was ordered by an affirmative vote of 4 to 3. Prior to the vote thereon, the motion was declared by the chairman to be out of order, on the ground that it was finished business. An appeal to the council from said ruling of the mayor was successful by a vote of 4 to 3. The motion to reconsider then was carried and by the terms of the original motion the defendants were employed as chief and assistant chief of the fire department for one year from June 6, 1922. The mayor then attempted by executive order to oust defendants and install Allen and Lunsford in their stead. Defendants refused to surrender their positions and the fire-fighting property of the city to Allen and Lunsford, and this suit followed.

The evidence shows that at the time of the service of the temporary restraining order, defendants were policemen of said city and had been duly appointed, qualified and acting in such capacity since July 5, 1921.

Appellants urge, first, that the petition fails to state a cause of action and therefore defendants' motion to dissolve the injunction should have been sustained. It is urged that Macon is a city of the third class and could act only through its mayor and city council, and that this action could not be maintained by the mayor in his own name. The city was not made a party plaintiff until after the issuance of the temporary restraining order and it then was made a party on motion of the city attorney.

In answer to this contention, plaintiff urges that any objections which might be urged against the right of plaintiff to bring this action in his own name were waived by defendants by their failure to file a special demurrer.

Section 1226, Revised Statutes 1919, provides: "The defendant may demur to the petition when it shall appear on the face thereof . . . that the plaintiff has not legal capacity to sue . . ." The petition herein shows on its face that the mayor was the only party plaintiff and to raise the question of his right to bring this action in his own name defendants should have demurred to the petition. This they did not do, but included a clause in the answer to the effect that plaintiff was not the proper party plaintiff. This point also was attempted to be saved by objecting to the introduction of evidence on the ground that the petition shows on its face (1) that the court has no jurisdiction to hear and determine the cause; (2) that plaintiff has an adequate remedy at law; (3) that plaintiff had no capacity to bring and maintain this suit. But this is not sufficient to save the point urged by defendants. There...