Watson v. Kerr

• Decision Date: 08 October 1926
• Docket Number: 25987
• Citation: 287 S.W. 337,315 Mo. 781
• Parties: J. A. Watson v. F. C. Kerr et al. Appellants
• Court: Missouri Supreme Court

287 S.W. 337

315 Mo. 781

J. A. Watson v. F. C. Kerr et al. Appellants

No. 25987

Supreme Court of Missouri

October 8, 1926

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Affirmed.

Frank H. Farris, Homer Rinehart and James Booth for appellants.

(1) The purchase of the poor farm was a current expenditure for the year 1922, and warrants drawn on the contingent fund in the payment of said purchase stand upon a parity with other warrants drawn against the same fund. Secs. 9458, 9459, R. S 1919; Watson v. Kerr, 312 Mo. 549. (2) Respondent admitted in his pleading that at the time he filed his suit there was money in the hands of the County Treasurer in each of the various funds involved herein, sufficient to pay the warrants in question, and such admission was concurred in and agreed to by appellants in their answer. This admission then becomes a conceded fact; and, if a fact, then respondent's petition failed to state facts which entitled him to any relief. Admissions in pleadings are conclusive, are indisputable, are judicial admissions concluding the parties who make the same, binding the parties, and estop each of them from denying what he therein admits to be true; and any testimony which tended to contradict such admissions was inadmissible and could not be considered by the court. 31 Cyc. 214; Call v. Moll, 89 Mo.App. 390; Ry. v. Iron Works, 117 Mo.App. 164; Walsh v. Walsh, 226 S.W. 246; (3) This contract neither raises the rate of taxation beyond the constitutional limit nor creates a debt in excess of the revenues for any year, for the warrants here involved are not payable except out of the surplus which may arise in these funds. Lamar W. & E. L. Co. v. City of Lamar, 128 Mo. 195; Harris v. Bond Co., 244 Mo. 693. (4) These warrants when issued were valid, and the fact that the surplus did not arise in the year 1922 out of which to pay them does not justify their cancellation. Their payment must be in the order provided by law, and out of such surplus when it does arise. State ex rel. v. Johnson, 162 Mo. 629, Secs. 12859, 12860, are in perfect harmony with Secs. 9458, 9459, R. S. 1919. Watson v. Kerr, 279 S.W. 695. (5) The fact that respondent was permitted, in the face of his admissions, to show that there was not sufficient money to pay these warrants does not invalidate the debt. These warrants were to be paid out of a surplus and not out of the current fund. The contingent warrants were to be paid out of the current funds, and that payment has been upheld by this court. Randolph v. Knox County, 114 Mo. 142; State ex rel. v. Payne, 151 Mo. 673; Kansas City Ry. Co. v. Thornton, 152 Mo. 575; State ex rel. v. Allison, 155 Mo. 334; State ex rel. v. Johnson, 162 Mo. 629. (6) The petition of respondent did not state a cause of action against appellants. It did not charge that the county treasurer was about to or intended to pay any of the warrants which he seeks to cancel out of the current funds of the county for the year 1922 or 1923. The remedy of injunction cannot issue unless the facts charged show some threatened or intended act which would be injurious to the petitioner. There is nothing in the pleadings which tends to show that the county treasurer intended or was about to pay these warrants out of the current funds, or out of any funds other than the surplus as provided by the contract. Martin v Bennett, 139 Mo.App. 243; Black v. Ross, 37 Mo.App. 257; Williams v. School District, 167 Mo.App. 480; Brier v. Bank, 225 Mo. 683.

J. A. Watson, W. D. Jones, Lorts & Breuer and Jones & Jones for respondent.

(1) The statute, Sec. 5459, R. S. 1919, expressly provided that a poor house and infirmary site acquired under provisions of Section 5458 may be paid for out of any money in the county treasury belonging to the contingent fund or out of any surplus in any other fund at the close of the fiscal year after the payment of all warrants drawn during such year against such fund and of all other previously issued and outstanding warrants against the same; and the undisputed evidence in this case shows that there was no surplus in any of the funds of the county at the end of the fiscal year and that there were outstanding county warrants for prior years of 1920 and 1921 against all the funds of the county amounting in the aggregate to $ 9,430.23. The warrants issued by the county court, $ 4,000 on the salary fund, $ 7,000 on the pauper and insane fund and $ 1,000 on the jury and election expense fund in part payment of this poor house site, are void and the court properly rendered judgment for plaintiff. Book v. Earl, 87 Mo. 254. (2) The attempted purchase of the 200 acres of land by the county court on the 16th day of March, 1922, not being in conformity with the law and being the creation of an indebtedness against Phelps County, for the year 1922 beyond the constitutional limit, was null and void. Book v. Earl, 87 Mo. 254; Anderson v. Ripley County, 181 Mo. 64; Trask v. Livingston County, 210 Mo. 582, L. R. A. (N. S.) 1048; R. S. 1919, sec. 2164. (3) The acquisition by the county of a 200-acre farm as a poor house and infirmary site was an addition to the assets of the county of a permanent nature and does not come within the term of current expenses, which are identical with running expenses. State ex rel. v. Payne, 151 Mo. 663; Taylor v. Mayo, 28 L.Ed. (U.S.) 163; 3 Words and Phrases, p. 1792; Book v. Earl, 87 Mo. 246; State v. Marion County Commrs., 21 Kan. 434.

Blair, C. J. All concur, except Graves, J., absent.

OPINION

BLAIR

Action by resident taxpaying citizen of Phelps County against the treasurer of said county and others to restrain said treasurer from paying $ 12,000 in warrants issued by the County Court of Phelps County in part payment for land purchased by said county from appellant H. R. McCaw, for use as a poor farm, at an agreed price of $ 17,000, and to cancel said warrants upon the ground that the county court had no lawful authority to incur indebtedness therefor or to issue such warrants. A change of venue was granted to the Franklin County Circuit Court. Upon the trial, judgment was entered in favor of plaintiff and against defendants restraining the said treasurer from paying said warrants, and restraining other defendants from collecting said warrants, and cancelling said warrants. Thereupon defendants were granted an appeal to this court.

This is a companion case to the case of Watson v. Kerr, which was decided by this court January 23, 1926, and is reported in 312 Mo. 549, 279 S.W. 692, wherein the judgment of the trial court was affirmed. In that case it was sought to restrain the payment and to secure the cancellation of warrants aggregating $ 5,000, issued and payable out of the contingent fund of Phelps County for the same purpose for which the warrants involved in this case were issued and made payable out of the pauper and insane, jury and election, and salary funds.

Respondent has filed a motion to dismiss the appeal. Said motion was taken with the case and must be first determined. On August 18, 1924, appellants filed in this court a certified copy of the judgment and order granting an appeal, from which it appears that judgment was entered, motion for new trial overruled and appeal granted March 22, 1924. The abstract of the record shows that judgment was entered March 31, 1924, motion for new trial filed and overruled April 1, 1924, and appeal granted the same day. Whatever the correct dates may be the certified transcript of the judgment and order granting the appeal was timely filed in this court. [Sec. 1479, R. S. 1919.]

Appellants contend that the judgment was entered March 22, 1924, and that the motion for new trial was not filed until April 1, 1924, or more than four days after judgment. Even if that be true, it would constitute no ground for dismissal of the appeal, as the record proper would still be here for review, because of the granting of the appeal and timely filing of the certified transcript. Aside from that, neither the certified transcript of the judgment and order granting the appeal nor the abstract shows that the motion for new trial was not timely filed. There is embodied in the recitals of the judgment itself a recital that such proceeding was had March 22, 1924. But the record entry shown by the abstract fixes the actual date of the judgment as of March 31, 1924. Outside of the different dates of the judgment shown by the abstract and the certified transcript of the judgment and order granting the appeal, there is no showing by appellant that the motion for new trial was not actually filed within four days after judgment was rendered, whichever be the correct date of the entry of such judgment. The abstract shows that it was timely filed and the certified transcript of the judgment and order granting appeal shows that it was timely filed, because said motion is there shown to have been overruled within four days after entry of judgment.

We cannot take the certified transcript by itself to show that the judgment was entered March 22nd and disregard the other recitals in said transcript; nor can we take the abstract of the record by itself to show that the motion for new trial was not filed until April 1st and disregard other recitals in the abstract. After respondent filed his motion to dismiss the appeal, appellants filed an additional certified transcript of the judgment and record entries and this corresponds with the recitals of the original abstract of the record.

Confusion in dates is apparent. The several documents before us, inconsistent and contradictory as they are, indicate regrettable looseness in the method of keeping and certifying the records of the trial court. Appellants' contention that the case was actually heard and...