Opinion
No. 42819.
July 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF ADAIR COUNTY, MISSOURI, TOM B. BROWN, J.
Robert S. McKenzie, Stubbs, McKenzie, Williams Merrick, Kansas City, for appellants.
William C. Frank, Pros. Atty., Adair County, Kirksville, P. J. Fowler, A. D. Campbell, E. M. Jayne, Kirksville, for respondent.
Action by Adair County against defendants, a contractor and the surety on his performance bond, for the alleged breach of a contract to erect a bridge. Verdict and judgment for plaintiff for $5,000. Plaintiff's motion for new trial was sustained on the sole ground of the inadequacy of the sum awarded as damages, from which order defendants appeal. Appellate jurisdiction is in this court because a county of this state is a party. Art. V, § 3, Const. of Mo., 1945, V.A.M.S.
The sole point relied on for reversal is that the premature adoption of the county's budget for the year in question rendered the contract sued on void, and for that reason plaintiff failed to make a case for the jury. Plaintiff questions whether that point may be raised because defendants filed neither motion for a new trial, nor other after-trial motion. However, it was presented to and passed on by the trial court in defendants' separate motions for directed verdicts at the close of plaintiff's case, and at the close of all the evidence in the case. This was the precise situation in Nelson v. Kansas City, 360 Mo. 143, 227 S.W.2d 672, where the evidence as to liability was held to be reviewable on defendant's appeal from an order sustaining plaintiff's motion for a new trial because of the inadequacy of the award. See, also, Lilly v. Boswell, Mo.Sup., 242 S.W.2d 73, 77, holding that the question of whether a submissible case was made is "inherent in every case that comes to an appellate court."
The contract in question was one in writing, and entered into February 14, 1950. Under § 49.170 (all statutory references are to RSMo 1949 and V.A.M.S. unless otherwise expressly noted) the February term of the County Court of Adair County commenced on the first Monday in that month; but two weeks previously, on January 23 (being one of the days of that court's November, 1949, term), it had adopted its 1950 budget. Such action was concededly premature under § 50.670 and § 50.740, which, in pertinent part, respectively, provide:
"The county courts of the several counties of this state are hereby authorized, empowered and directed and it shall be their duty, at the regular February term of said court in every year, to prepare and enter of record and to file with the county treasurer and the state auditor a budget of estimated receipts and expenditures for the year beginning January first, and ending December thirty-first. * * *" § 50.670.
"It is hereby made the first duty of the county court at its regular February term to go over the estimates and revise and amend the same in such way as to promote efficiency and economy in county government. * * *" § 50.740, subd. 1.
Defendants also invoke § 50.740, subd. 3, as follows:
"Any order of the county court of any county authorizing and/or directing the issuance of any warrant contrary to any provision of this law shall be void and of no binding force or effect; * * *."
Appellants have not cited (nor have we been able to find) any case even remotely involving the legal effect of premature action of a county court, or similar body, in adopting an annual budget. The defendants urge that a county budget so adopted is a nullity because the language of the statutes, supra, is plain and unambiguous; that strict compliance with the County Budget Law is required by the courts; and that to validate or sanction action taken at a time earlier than that prescribed by the sections in question would circumvent the right of citizens who might desire to appear and protest the county making certain expenditures, or to question the propriety of the tax rate. The latter argument is beside the point because the record is limited to the bare fact of adoption two weeks prior to the time prescribed by statute.
The cases cited by appellant are: Missouri-Kansas Chemical Co. v. Christian County, 352 Mo. 1087, 180 S.W.2d 735; Missouri-Kansas Chemical Corp. v. New Madrid County, 345 Mo. 1167, 139 S.W.2d 457; Layne-Western Co. v. Buchanan County, 8 Cir., 85 F.2d 343; Traub v. Buchanan County, 341 Mo. 727, 108 S.W.2d 340; Elkins-Swyers Office Equipment Co. v. Moniteau County, 357 Mo. 448, 209 S.W.2d 127. It is true that in each of them the plaintiff had furnished materials or performed labor which had been accepted, and yet recovery was denied under the County Budget Law. These were instances of incurring obligations in excess of the amount provided for in the budget, or where the outlay sought to be enforced had not been budgeted at all, and thus obviously in violation of the provisions of the act. They are cited as examples of the uniformity with which the courts have required strict compliance with the act, from which it is argued that there would have been no liability on the part of the suppliers in those cases had they defaulted, and hence none on defendants in the case at bar. But the situation now under scrutiny is entirely different. No neglect or failure to act is involved except as regards timing (and this accelerated, not delayed), and consequently no thwarting of the evident purposes of the act, and, for aught that appears, no resulting prejudice to defendants or anyone else. Suppose defendants had performed, and the county defaulted, and was sued for the contract price of the services, would the court indulge in such a construction of the statute as would defeat the claim? The question would seem to answer itself. The slightly premature adoption of the budget here involved — nothing else appearing — should not be so construed as to result in producing disorder and chaos by unsettling Adair County's fiscal affairs for the year in question. The order granting a new trial should be affirmed, and the cause remanded. It is so ordered.
All concur.