47 Mo. App. 554 | Mo. Ct. App. | 1892
This is the second appeal of this case. The first appeal was taken to the supreme court by the plaintiff from a judgment, sustaining a demurrer to his petition, and the opinion of that court reversing the judgment is reported in 91 Mo. 658. The present appeal is taken by the defendant from a judgment of the trial court sustaining a demurrer to his answer, and making a final judgment against him upon the hearing of the evidence. The appeal was also taken to the supreme court, but was transferred by it to this court as the court properly having jurisdiction of the appeal.
Questions determined by the supreme court on the first appeal are not open for argument now, because such questions cannot be reargued on a second appeal in any case. Adair Co. v. Ownby, 75 Mo. 282. The fact that, under the constitution, the opinion of the supreme court is binding upon us, as the last controlling decision of the question presented, would necessarily preclude such review, even if we had otherwise the power to enter upon a re-examination of the question.
The plaintiff’s petition, which is now before us, is the identical petition which was before the supreme court in Stillwell v. Glasscock, 91 Mo. 658. The supreme court then decided that the petition did state a good cause of action. The only point, therefore, open for our consideration is whether the answer demurred to states a good defense, and whether the recovery was warranted in amount.
The petition, as construed by the supreme court* is one to recover the subscription of $100 made by the defendant,.he being one of a number of subscribers for thepurpose of “the maintenance and repairs of the levee, and a more perfect reclamation and protection of the lands embraced within the Sny Island Levee Drainage District.” Amos J. Stilwell was appointed trustee for
The answer, which was adjudged insufficient, is as follows :■ “ The defendant for answer admits the execution of the contract alleged, but says that said agreement was and is void, because the same is against public policy in this, that it is a combination for the purchase of lands at delinquent tax sales, to-wit, sales of land for taxes imposed to furnish revenue for supporting government, state and municipal, with which taxes the delinquent levee assessments mentioned in said contract have no connection, and the purchases alleged were made at said sales for general taxes.
“The defendant says that up to the time of the filing of the petition the-plaintiff repudiated the trust alleged by him, so far as defendant is concerned, and denied defendant’s interest in said lands, and demanded of defendant the payment of said $100 so claimed, while at the same time plaintiff denied the defendant any intei’est in said land or txrnst.”
It will be seen at a glance that the first paragraph of the answer is a mere reargument in another form of questions raised by the defendant’s demurrer in the
Touching the measure of the recovery the defendant’s contention is equally untenable. That the plaintiff had legal capacity to sue, is admitted by the general demurrer. Bulkley v. Iron Co., 77 Mo. 105. It is true, as the defendant contends, that that does not necessarily admit the right of extent of recovery, and that advantage may still be taken of such defect at the trial by having the damages apportioned. Thompson Railroad, 80 Mo. 521. But, when the title-to a fund is vested in one for the benefit of others, he becomes a trustee of an express trust under the statute, and may sue alone without joining those beneficially interested with him. Kuhl v. Meyer, 35 Mo. App. 206.
We are asked to afiirm the judgment with damages. In view of the fact that all questions of law were adjudged against the defendant on the first appeal, and that the present appeal raises points of law only which are equally untenable, the case is one wherein the judgment should be affirmed with damages. Affirmed with ten-per-cent, damages.