Western Tie & Timber Company v. Pulliam

• Citation: 139 S.W. 144,237 Mo. 1
• Parties: WESTERN TIE & TIMBER COMPANY, Appellant, v. JOHN A. PULLIAM et al
• Decision Date: 15 July 1911
• Court: Missouri Supreme Court

139 S.W. 144

237 Mo. 1

WESTERN TIE & TIMBER COMPANY, Appellant, v. JOHN A. PULLIAM et al

Supreme Court of Missouri, Second Division

July 15, 1911

Appeal from Ripley Circuit Court. -- Hon. Jesse C. Sheppard, Judge.

Affirmed.

Charles O. Barth and Block & Sullivan for appellant.

(1) The proceedings for the organization of this drainage district are controlled by the drainage law in force at the time; the subsequent transactions, by the law then in force. State ex rel. v. Taylor, 224 Mo. 463. (2) Under the law in force when these proceedings were had, personal service upon landowners resident in the county was required. R. S. 1899 sec. 8286. (3) The affidavit filed was not sufficient to authorize an order of publication to landowners not residents of the county. R. S. 1899, sec. 8286; Harness v Cravens, 126 Mo. 247; Schell v. Leland, 45 Mo 292; Tooker v. Leake, 146 Mo. 341; Crossland v. Admire, 149 Mo. 656; Parker v. Burton, 172 Mo. 91; Cummings v. Brown, 181 Mo. 717; Van Natta v. Real Estate Co., 221 Mo. 379; Wright v. Hink, 193 Mo. 132. (4) Jurisdiction of infant landowners could not be acquired by service upon their guardians. Hendricks v. McLean, 18 Mo. 37; Smith v. Davis, 27 Mo. 300; Baumgartner v. Guessfield, 38 Mo. 41; Railroad v. Campbell, 62 Mo. 588; Campbell v. Light Co., 84 Mo. 367; Fischer v. Siekmann, 125 Mo. 176. (5) Without due service of process upon those whose lands are to be assessed, the county court had no jurisdictions to proceed to judgment organizing the district. Eaton v. St. Charles, 8 Mo.App. 177, 77 Mo. 493; State ex rel. v. Wall, 153 Mo. 222; Whitely v. County, 73 Mo. 30; Anderson v. Pemberton, 89 Mo. 66; In re Avenue, 121 Mo. 105; Names v. Comrs., 30 Mich. 490; McKee v. Hull, 69 Wis. 662; State v. Lyon, 73 Wis. 601; Fraser v. Trelawney, 129 Wis. 377. (6) Without proper service of process upon those whose lands were to be taken for a right of way, the county court had no jurisdiction to organize the district or establish the drain. Williams v. Kirby, 169 Mo. 628; In re Hill, 200 Mo. 643; Anderson v. Pemberton, 89 Mo. 66; Wright v. Wilson, 95 Ind. 412. (7) Upon the petition filed, the county court had no jurisdiction to order the construction of the drain which it has ordered. R. S. 1899, secs. 8279, 8280, 8281, 8290, 8291; In re Essex Avenue, 121 Mo. 105; Lagar v. County, 100 Minn. 85; Jurries v. Virgens, 104 Minn. 75. (8) The county court was without power to issue and sell bonds of this alleged drainage district. R. S. 1899, sec. 8279; R. S. 1909, sec. 5579; R. S. 1899, sec. 8998; R. S. 1909, sec. 5603; State ex rel. v. Taylor, 224 Mo. 464; State ex rel. v. County, 46 Mo. 231; Steines v. County, 48 Mo. 177; Thornburg v. School, 175 Mo. 23; Evans v. McFarland, 186 Mo. 720. (9) The amended petition was an abandonment of the original. Hawkins v. Massie, 62 Mo. 553; Bobb v. Bobb, 89 Mo. 418; Ingwerson v. Railroad, 205 Mo. 335. (10) The county court was without power to damage appellant's lands by this proposed drain, to be constructed without any outlet for the water. Constitution, art. 2, sec. 21; R. S. 1899, sec. 8285; Jurries v. Virgens, 104 Minn. 75. (11) Appellant was entited to relief by injunction. State ex rel. v. Taylor, 224 Mo. 47; Tie Co. v. District, 226 Mo. 420; R. S. 1909, sec. 2534; Casby v. Thompson, 42 Mo. 136; Bank v. Kercheval, 65 Mo. 688; Towne v. Bowers, 81 Mo. 495; Turner v. Stewart, 78 Mo. 490; Overall v. Ruenzi, 67 Mo. 207; Society v. Hudson, 85 Mo. 32; Leslie v. St. Louis, 47 Mo. 479; Verdin v. St. Louis, 131 Mo. 74; State ex rel. v. County, 51 Mo. 370; Newmeyer v. Railroad, 52 Mo. 81; Richardson v. McReynolds, 114 Mo. 641; Jones v. Williams, 139 Mo. 37; McPike v. West, 71 Mo. 199; Monroe v. Crawford, 163 Mo. 181; Spurlock v. Dornan, 182 Mo. 242; Const., art. 2, sec. 21; Holmes v. Kansas City, 209 Mo. 530; Fraser v. Mulaney, 129 Wis. 387; Ruhland v. Jones, 55 Wis. 673; Commission v. Winn, 53 So. 778; Belstonow v. Pierce, 101 Minn. 274; Lager v. County, 100 Minn. 85; Jurries v. Virgens, 104 Minn. 71; Johnson v. Clontarf, 98 Minn. 287; Campbell v. Youngstown, 114 N.W. 416; Railroad v. Dudgeon, 64 Ark. 108; Bruggink v. Thomas, 125 Mich. 9.

Thomas F. Lane for respondents.

(1) The appellant was not entitled to injunctive relief, either on the face of its bill, or under the facts in evidence. Therefore, the action of the court below dismissing appellants' petition was right. 1 High on Injunctions (4 Ed.), secs. 7, 78, 165, 166. (2) Even though the judgment rendered by the court at law be void for want of jurisdiction equity will not enjoin, but will leave the parties to their remedy at law. 1 High on Injunctions (4 Ed.), sec. 125; Railroad v. Reynolds, 89 Mo. 146; Stockton v. Ransom, 60 Mo. 535; Railroad v. Lowder, 138 Mo. 533; State ex rel. v. Brown, 172 Mo. 381; Railroad v. Hosreth, 144 Mo. 149; Henman v. Westheimer, 110 Mo.App. 194. (3) Injunction will not lie when there is an adequate remedy at law. McPike v. Few, 48 Mo. 525; Stockton v. Ransom, 60 Mo. 535. (4) Courts of equity in exercising their jurisdiction in restraint of an action at law, exercise it, not over the court of law, but upon the parties litigant therein. And a court of equity is devoid of jurisdiction to grant an injunction against the judge of another court to restrain him from acting in or making orders in a particular cause. Every judge (pro hac vice the court) is supreme and independent in his own sphere, and cannot be restrained in the discharge of his functions by the process of injunction. High on Injunctions (4 Ed.), sec. 46; Pom. Eq. Jur. (3 Ed.), secs. 1360, 1361, 1365; 16 Am. and Eng. Ency. Law 365. (5) The issues presented in the case at bar have been definitely settled by a previous judicial decision (Tie & Timber Co. v. District, 226 Mo. 420); therefore the doctrine of res judicata applies in this case. Womach v. St. Joseph, 201 Mo. 476; Erwin v. Henry, 5 Mo. 469; State v. Wear, 145 Mo. 189; Winham v. Kline, 77 Mo.App. 36; Brown v. Railroad, 96 Mo.App. 164; Miller v. Bennerker, 46 Mo. 194; Dobbs v. Ins. Co., 72 Mo. 191; Chouteau v. Gibson, 76 Mo. 38, 111 U.S. 200; Murphy v. DeFrance, 101 Mo. 159; Carey v. West, 165 Mo. 455; Caldwell v. White, 77 Mo. 473; Pugh v. Williamson, 61 Mo.App. 169; Wilson v. Brighton, 50 Mo. 17; Glosner v. Weisberg, 43 Mo.App. 214; Young v. Byrd, 124 Mo. 590; Hamilton v. McLean, 169 Mo. 51. (6) In passing on the plea of res adjudicata, the question is not whether the court decided the point right or wrong; but the question is, did it decide, and is the decision final? Chouteau v. Gibson, 76 Mo. 38, 111 U.S. 200; Murphy v. De France, 101 Mo. 159. (7) The doctrine of res adjudicata applies as well to judgments of courts of last resort as to those of nisi prius courts. If the same subject-matter comes in question in a second action before a court of last resort, it is bound by its own former decision. Chouteau v. Gibson, 76 Mo. 51; Carey v. West, 165 Mo. 455. (8) The county court had exclusive jurisdiction to establish and organize the Naylor Drainage District under the statute; it had jurisdiction therefore of the subject-matter; it also had jurisdiction of the landowners in said district. Art. 4, chap. 122, R. S. 1899; Western T. & T. Co. v. District, 226 Mo. 420; State ex rel. v. Taylor, 224 Mo. 393. (9) The failure to notify one or more landowners of the proceedings to establish a ditch, does not vitiate the proceedings. Carr v. Boone, 108 Ind. 241; Poundstone v. Baldwin, 145 Ind. 139; Grimes v. Coe, 102 Ind. 406. (10) The amendment of the petition filed in the county court was proper; the county court could have changed the location of the entire ditch, by amending the report of the viewers. Sec. 8287, R. S. 1899; State ex rel. v. Taylor, 224 Mo. 393; State v. Court, 42 Wash. 491. (11) Injunction will not lie to restrain the letting of a contract for the construction of a ditch, unless the proceedings are void on their face under the statutes. Young v. Sellers, 106 Ind. 101; 6 Cur. Law, p. 1452, sec. 3; Ross v. Wright, 104 N.W. 506; Calker v. Spraker, 26 Ill.App. 159; Leonard v. Sparks, 117 Mo. 103. (12) In the absence of fraud, the findings of the county court that the lands will be benefited, or that the drain is necessary, or practical, is not subject to review by appeal, or in subsequent proceedings. Alstad v. Sims, 109 N.W. 6; Riter v. Drainage Dist. 94 S.W. 711; District v. County, 89 P. 993; Heman v. Allen, 156 Mo. 534, 181 U.S. 402; State ex rel. v. Stewart, 74 Wis. 620. (13) The court had jurisdiction of the defendant (appellant) in the original proceedings to establish the ditch; it found as a fact, and judicially determined that the notice under the law was sufficient. Under the law appellant is precluded now from attacking the judgment for lack of notice. Leonard v. Sparks, 117 Mo. 103; McMullin v. State ex rel., 105 Ind. 334; State ex rel. v. County, 135 Mo. 542. (14) The question of the existence of all jurisdictional facts can only be determined by the court exercising it lawful functions under the law; the drainage act left it for the court to find and determine when legal notice had been given; that fact was found and is recited in the judgment of the court; it is conclusive upon appellant in this case. State ex rel. v County, 135 Mo. 542; Leonard v. Sparks, 117 Mo. 103; State ex rel. v. Taylor, 224 Mo. 393.

FERRISS, J. Kennish, P. J., concurs, Brown, J., in result.

OPINION

FERRISS, J.

Suit by the Western Tie & Timber Company, as plaintiff, to enjoin the defendants, judges of the county court of Ripley county, from proceeding with the construction of a drain or artificial water course in Ripley county, and also to enjoin the issuing of certain bonds for the construction of the same, and to prevent assessments and levies against the lands of the...