Wilson v. King's Lake Drainage & Levee Dist.

• Citation: 237 Mo. 39,139 S.W. 136
• Court: United States State Supreme Court of Missouri
• Decision Date: 15 July 1911
• Parties: WILSON v. KING'S LAKE DRAINAGE & LEVEE DIST.

139 S.W. 136

237 Mo. 39

WILSON v. KING'S LAKE DRAINAGE & LEVEE DIST.

Supreme Court of Missouri.

July 15, 1911.

1. COURTS (§ 231)—JURISDICTION—AMOUNT IN CONTROVERSY.

The Supreme Court, in determining the amount in controversy on appeal from a judgment sustaining a demurrer to the petition, is not bound by the prayer of the petition, but must take the whole petition and determine what sum is involved and at issue at the date of the judgment from which the appeal is taken.

2. APPEAL AND ERROR (§ 1195)—LAW OF THE CASE.

A decision of the Supreme Court which adjudges the invalidity of the establishment of a drainage district, and which remands the proceeding to the county court to try, as if the original proceeding is presented to it for the first time, is the law of the case, and invalidates contracts made and warrants issued by the board of commissioners of the district prior to such decision.

3. COURTS (§ 231)—AMOUNT IN CONTROVERSY —PETITION.

A petition alleged the establishment of a drainage district and the construction of drains pending an appeal. The Supreme Court adjudged that the district was not legally established, and remanded the proceeding to the county court to take it up as if an original proceeding was presented to it for the first time. Pending the disposition of the appeal, warrants were issued for construction work. Subsequently a drainage district was legally established, and its commissioners accepted and used the work done by the commissioners of the district adjudged invalid. The petition demanded judgment for $5,672.56 for such work, as evidenced by warrants, with 6 per cent. interest, and showed that the district was not legally incorporated until two years before the judgment sustaining a demurrer to the petition. Held, that the petition showed that the action was not on the warrants, but for a debt equal in amount to the warrants, and the amount claimed, with interest for the two years, did not make an amount within the jurisdiction of the Supreme Court, and the appeal must be transferred to the Court of Appeals.

4. COURTS (§ 231)—APPELLATE JURISDICTION —"POLITICAL SUBDIVISION."

A drainage district is not a political subdivision, within Const. art 6, § 12, giving the Supreme Court jurisdiction in cases where a county or "other political subdivision" is a party; the quoted words meaning subdivisions created with powers similar to those of a county, and not referring to townships, school districts, levee districts, drainage districts, and like minor political subdivisions.

Lamm, P. J., and Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Lincoln County.

Action by Henry W. Perkins, prosecuted after his death by Thomas C. Wilson, administrator, against the King's Lake Drainage & Levee District. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Transferred to St. Louis Court of Appeals.

F. L. Schofield and E. B. Woolfolk, for appellant. O. H. Avery and Wm. A. Dudley, for respondent.

GRAVES, J.

This is an action to recover a money judgment, and a serious question is as to our jurisdiction under the act of 1909 (Laws 1909, p. 397), increasing the jurisdiction of the Courts of Appeals to $7,500. This case was not submitted to this court until long after that act took effect, and if the amount involved is less than $7,500 it was our duty to certify the cause to the proper Court of Appeals. The appeal in this case was taken October 17, 1906. Plaintiff filed a petition to which a demurrer was filed and sustained.

To determine the amount, we must therefore go to the petition itself. We are not bound by the prayer of the petition, but must take the whole instrument and determine what sum is involved and at issue at the date of the judgment from which the appeal is taken. Wilson v. Russler, 162 Mo. 565, 63 S. W. 370; Wolff v. Matthews, 98 Mo. 246, 11 S. W. 563; Milling Co. v. Walsh, 97 Mo. 287, 11 S. W. 217; State ex rel. King v. Gill, 107 Mo. 44, 17 S. W. 758.

The prayer of this petition reads: "Wherefore, premises considered, plaintiff prays judgment against the defendant for the said sum of five thousand six hundred and seventy-two dollars and fifty-six cents ($5,672.56), the amount of said indebtedness so evidenced by said warrants with 6 per cent. interest per annum on the respective sums mentioned in said warrants, respectively, from the said dates thereof, respectively. And that plaintiff have such other, further, and general or special relief in the premises as equity may require and as to the court shall seem meet."

But going to the petition itself, we find this state of facts: In 1894, under the act of 1893 (Laws 1893, p. 188), a proper number of persons residing and owning swamp and overflow lands in Pike and Lincoln counties, this state, presented their petition to the county court of Lincoln county, praying said court for the organization of the "King's Lake Drainage & Levee District." The petition was filed in Lincoln county, because the greater portion of the lands to be incorporated therein was situated in that county. To this petition remonstrances were filed, and after consideration of both petition and remonstrances the prayer of the petitioners was granted, and three commissioners were appointed to lay out and construct the work, one of whom was W. J. Seaman. These commissioners made their report as required by statute, and at the May term of the said county court, in the year 1895, said drainage district was established under the name hereinabove set out, and the same was declared to be a body corporate. One Jamison, who had remonstrated, and whose lands were charged with $5,726 benefits and credited with $205.56 damages, appealed to this court. King's Lake Drainage & Levee District v. Jamison, 176 Mo. 557, 75 S. W. 679.

The closing language of the opinion of this court in that case best describes our disposition of it. Such language is: "Without further elaboration, it follows that Seaman was not a competent commissioner, and that the circuit court was right in so holding and in setting aside the report of the commissioners and the judgment of the county court. The judgment of the circuit court must therefore be affirmed, and the cause remanded to the county court of Lincoln county, to be by it taken up and tried as if the original proceeding was presented to it for the first time, and to proceed with the cause without regard to anything that has heretofore been done in the cause, but in conformity herewith and with the statute." This opinion was handed down at the April term, 1903, of this court. The reason for thus disposing of the case is fully discussed in the opinion, and further note of it need not be made herein.

Pending the appeal in the Jamison Case, the three commissioners proceeded to let contracts for the work of constructing the required levees and drains. The contract was awarded to A. V. Wills & Sons in 1894, and on October 21, said Wills & Sons entered into a contract in accordance with this award. Later, in 1895, this contract was assigned to Thomas E. Wilson. In said work were 12 miles of levee, which Wilson constructed. The said drainage district through its president and secretary, issued to Wilson warrants upon the treasury of said district from time to time as the work progressed. Some were paid, but the four involved in this suit were not paid for want of funds. These four aggregate $5,672.56. The first is for $4,437.10 and is dated May 22, 1896, and on its face calls for 6 per cent. interest from date. The second is for $291.10, of date December 14, 1897, with interest as the first warrant. The third is for $279.79, of date February 4, 1901, with interest as above. The fourth is for $664.57, of date October 16, 1902, with interest as first stated. The first two above described were issued to Wilson and by him assigned to H. W. Perkins. The last two were issued direct to Perkins in lieu of other warrants theretofore assigned to him by Wilson. Perkins brought the suit, but died before the trial, and Wilson, who had been made his administrator, became party plaintiff.

Upon the filing of the mandate of this court with the county court, that court proceeded as by our opinion directed. On November 13, 1903, the county court took up and heard said petition and found that the establishment of said drainage district was necessary, and again appointed three commissioners. In August, 1904, these commissioners filed their report, and on November 29th, said report coming on for hearing was duly heard and by the court modified and approved, and on said date the court adjudged said district to be a drainage district under the name of "King's Lake Drainage & Levee District," and such was adjudged to be a body corporate on that date. These commissioners proceeded with the work and completed the levee and other work as described in the original petition.

The petition, after charging all the matters which we have hereinabove detailed in brief, then specifically says:

"That in the construction of said work said commissioners adopted, appropriated, and used said old levee its entire length of 12 miles, and made same a part of and included same in the work so by them to be done, as such commissioners, for and on the behalf of and as the corporate authority of the defendant, King's Lake Drainage & Levee District, which thereupon and thereby received, accepted, and appropriated the same with all the advantages and value thereof; and, further, that in pursuance of said report of said commissioners, and of the said order and judgment of said court confirming same, large credits were given and allowed to the various landowners in said district on their assessments of benefits, for and on behalf of said 12 miles of levee so adopted, appropriated, and used,...