Winkleman v. Des Moines & Mississippi Levee Dist. No. 1

• Decision Date: 04 February 1913
• Citation: 153 S.W. 539
• Parties: WINKLEMAN et al. v. DES MOINES & MISSISSIPPI LEVEE DIST. NO. 1.
• Court: Missouri Court of Appeals

153 S.W. 539

WINKLEMAN et al. v. DES MOINES & MISSISSIPPI LEVEE DIST. NO. 1.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

1. LEVEES (§ 5) — LEVEE DISTRICTS — LIABILITIES OF NEW DISTRICT SUCCEEDING OLD.

Where a levee district ceased its activities and did not exercise its franchise rights after a judgment was rendered against it, and another levee district covering the same territory took over, without compensation, all the property of the former, and the inhabitants of the district were the same, the court will treat the old corporation as defunct, though, in fact, it is not formally dissolved, and the new corporation will be treated as a continuation of the old in an action on the judgment; the grant of power and franchises being to the inhabitants of the incorporated territory rather than to the dry shell of the corporation.

2. LIMITATION OF ACTIONS (§ 6) — JUDGMENT — STATUTES.

A judgment rendered before the amendment to the 20-year statute of limitations (Laws 1895, p. 221, as amended Rev. St. 1909, § 1912), limiting the time for bringing action on judgments to 10 years, was not affected thereby, and an action thereon was not barred until 20 years after its rendition.

Appeal from Circuit Court, Clark County; C. D. Stewart, Judge.

Action by Charles Winkleman and others against the Des Moines & Mississippi Levee District No. 1. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. T. Llewellyn, of Kahoka, for appellant. W. L. Berkheimer, of Kahoka, and J. M. Dawson, of Jefferson City, for respondents.

NORTONI, J.

This is a suit on a judgment. The finding and judgment were for plaintiffs, and defendant prosecutes the appeal. Plaintiffs' predecessor in right recovered the judgment in suit in the circuit court of Clark county on November 19, 1890, in the sum of $1,963.77 against the Egyptian Levee Company, a corporation formed and existing at the time by virtue of an act of the Legislature passed February 27, 1855. The Egyptian Levee Company was incorporated under this act for the purpose of reclaiming and protecting from overflow about 11,000 acres of land in Clark county lying between the Des Moines and Fox rivers and near the Mississippi. See Session Acts 1855, p. 73; Local Laws and Private Acts 1855, p. 281.

During the existence of this corporation, which continued active until shortly before the defendant was organized in 1903, it contracted the indebtedness which was reduced to judgment in November, 1890, as above stated. The judgment was not paid by the Egyptian Levee Company, and it appears that corporation ceased its activities before the defendant was organized. The Egyptian Levee Company was authorized by the act of incorporation to exercise the power of eminent domain and to build and repair levees, ditches, and embankments to prevent the inundation of lands within the levee district, to levy taxes to a fixed limit, to pay for the construction of such earthworks, and also collect taxes for the purposes of keeping them in repair. It was authorized, too, to acquire title in fee simple, which it did, to the right of way for its levees and embankments not to exceed 100 feet in width. The property thus acquired and constructed by that company consisted of rights of way, levees and ditches, drains, etc., and amounted in value to $20,000 at the time it was finally taken over or absorbed by defendant. It appears that, several years after plaintiffs' predecessor in right recovered the judgment in suit against the Egyptian Levee Company, the board of directors of that company refused to meet and further conduct its affairs or utilize the corporate franchises which it enjoyed. Shortly thereafter defendant, Des Moines & Mississippi Levee District No. 1, was organized by a decree of the circuit court of Clark county on December 28, 1903, under the general statutes of Missouri touching such matters; that is to say, under article 7, c. 122, R. S. of Mo. 1899. The same is now article 9, c. 41, R. S. Mo. 1909. Defendant, Des Moines & Mississippi Levee District No. 1, so incorporated in 1903 under the general statutes, was erected for identically the same purpose as the prior corporation, Egyptian Levee Company, against which the judgment in suit was then outstanding and unpaid. Furthermore, the new corporation, or defendant levee district, included precisely the same lands, territory, and inhabitants as the old one, and exercised the same powers with respect to levying and collecting taxes for the same purposes. In the proceedings had with respect to the incorporation of defendant levee district in 1903, the board of supervisors of the new district appointed three disinterested freeholders of the county, under section 8365, R. S. 1899, for the purpose of taking the relinquishment of right of way for levees and drains and to assess the value of any levees or improvements then constructed which may be utilized by the new district. Although these commissioners qualified and acted, they did not assess the value of the right of way, levee, and ditches, then constructed and in existence, of the prior Egyptian Levee Company, though it is agreed such property was of the value of more than $20,000. However, defendant, Des Moines & Mississippi Levee District No. 1, appropriated the right of way, levees, ditches, drains, and improvements of the Egyptian Levee Company to its own use and continued to use the same ever since. Though the old Egyptian Levee Company has never been dissolved by an act of the Legislature or otherwise formally declared out of existence, plaintiffs prosecute this suit against defendant — that is, the succeeding or new corporation — to recover the amount of the indebtedness owing to them by virtue of the judgment against the prior Egyptian Levee Company on the theory that it is in fact the successor as a continuation of the prior levee company and in which the prior levee company, together with all of its assets, is merged.

It is argued on the part of defendant that the recovery may not be sustained against it for the reason that it does not appear that the prior Egyptian Levee Company had been dissolved and no longer exists. But we are not so persuaded. While it is true that the prior levee company was not dissolved by a formal act of the Legislature or otherwise, if it were possible to otherwise dissolve it, it appears beyond question that that company ceased its active operation after plaintiffs' judgment was recovered and shortly before defendant, or the new levee company, was incorporated. The record reveals that the board of directors last elected by the old company refused to qualify or to further act in that capacity and utilize the franchises which the company enjoyed by virtue of its incorporation. Immediately thereafter defendant, or the new levee district, was organized under the general statutes for identically the same purposes as the old one. It included and covered the same territory and no more than...