State ex rel. Ray v. Arcadia Timber Co.

274 Mo. 663 | Mo. | 1918

BOND, C. J.

statement

I. This is the second appeal in this caso. On the former appeal the question was as to the sufficiency of a notice to the respondent, which by misPasión of the clerk was directed to the Arcadia Realty Company instead of its correct corporate name, the Arcadia Timber Company.

In that case it was ruled that the notice in question was fatally defective and that the order of publication thereof did not bring the respondent into court, and hence it was not liable for the taxes sued for in that case and was not a party to the proceedings therein resulting in the establishment of the drainage district, nor affected by the judgment creating the drainage district. [State to use of Douglas v. Arcadia Timber Co., 178 S. W. 93.]

In the present case some of the purchasers of the bonds of the district instituted a proceeding in the county court where the district had been previously organized, whereupon that court ordered a notice to be given to respondent, designating it by its proper corporate name. This notice was duly published, the respondent appeared and moved to quash the notice, and also appeared specially, subject to its motion to quash, and excepted to the original report of the viewers and engineers when the district was organized. Thereafter, by consent of parties, respondent’s exceptions were withdrawn without prejudice, its motion to quash was overruled. and the county court proceeded to entertain jurisdiction and reaffirmed the report of the viewers and engineers and directed its clerk to reapportion the total costs of the improvements. These orders were made about six years after former orders of the same nature were made when the district was organized, and they included orders of approval and confirmation of those made by the court six years before.

The county court also adjudged, at the time of making its last orders, to-wit, March 6, 1916, that its previous order made March 17, 1909, dividing the assessments against the lands of the district into nineteen installments, should be changed by dividing them into thirteen installments.

For one of these installments, to-wit, $5544.58, the Collector of the Revenue of Dunklin County instituted the present action against defendant. To a petition setting up the foregoing facts, respondent interposed a general demurrer, which was sustained by the trial court, and plaintiff, declining to plead further, duly; appealed to this court.

II. The organization of the. drainage district [upon which the former suit was based] involved, as to all prop-FinaP erty owners therein except respondent, a corn-judgment. píete assessment of the property within the dis-drict and a final judgment. [State ex rel. v Redman, 194 S. W. 260; McQuitty v. Steckdaub, 190 S. W. 591, and case cited; R. S. 1909, secs. 2097, 1971.]

The complete organization' of the district then established took place about six years before the institution of the present action. All the power of the county court to deal with that judgment or set it aside, was lost, in the absence of statutory authority, after the lapse of the term when the judgment was rendered. [Jeude v. Sims, 258 Mo. l. c. 39.] It could not, therefore, set aside the final judgment organizing the district under a' proceeding instituted six years later and reopen and reorganize and re-establish the district.

It necessarily follows that the proceeding- instituted in the county court for that purpose was inapt and inefficacious. Ait any time 'before the final consummation of the proceeding -which culminated in the original establishment of the drainage district, it would have been entirely within the province of the county court, as the tribunal clothed with, authority under the statutes then in force, to have taken proper steps to notify the respondent and make it a party to that original proceeding. It was, however, out of the power of that tribunal^ under the facts stated in the petition in this cause, to have brought the respondent in as a party to a judicial proceeding which had ended in a final judgment at the term of court which had lapsed before the proceeding was instituted to make it a party.

There is no doubt of the correctness of the rule invoked by the learned counsel for appellant that the construction and interpretation of the statutes -relating to the organization of drainage districts, should be broad and liberal in order to carry out their beneficent purposes. [In re Big Lake District v. Rolwing, 269 Mo. 161.] But that principle does not warrant us in assuming the grant of powers or authority to a county court specially entrusted with the organization of these districts, which are withheld by the statute and which would be violative of the express provisions of the civil code. In all these proceedings the county court was exercising a special and limited authority measured by the terms of the statute. It was not as to these a court of general jurisdiction. Hence, it was necessary that its jurisdiction and power to render judgment should be shown somewhere in the record and proceedings before it; otherwise they would be open to collateral attack. [State ex rel. v. Redman, 194 S. W. l. c. 263.]

In reaching this conclusion we do not wish to be understood as ruling that respondent should go scot-free of a proper return for the benefits received by the inclusion of • its property in the drainage district, or that there is no other proceeding by which it can be held to a just liability for such benefits; but we do hold t-bat the proceeding instituted in the county court by the purchasers of the bonds and predicated on the theory of the right of that court to set aside a former final judgment [to which the defendant was not a party] and include it within another judgment purporting in all other respects to be only a readjudication of the former judgment, was not within the purview or scope of the statute relating to the organization of drainage districts or the civil code of Missouri.

We see no escape from the conclusion that the judgment of the trial court sustaining the demurrer to the petition filed in this "case, was correct. It is, therefore, affirmed.

It is so ordered.

All concur except Blair, J., who dissents.