Drainage Dist. No. 1 Reformed v. Matthews

Full title: DRAINAGE DISTRICT NO. 1 REFORMED, OF STODDARD COUNTY, MISSOURI, a Public…

Court: Supreme Court of Missouri, Division One

Date published: Dec 11, 1950

234 S.W.2d 567 (Mo. 1950)

234 S.W.2d 567

Opinion

No. 41649.

November 13, 1950. Rehearing Denied, December 11, 1950.

SUMMARY OF DECISION

Action by a drainage district and certain landowners to enjoin the payment of drainage district maintenance warrants. The county court had the right to issue the warrants, including interest. A prior judgment on the warrants against the drainage district is res judicata and also binding on the landowners.

HEADNOTES

1. PLEADING: Motion to Dismiss: Conclusions Not Admitted. A motion to dismiss admits only the material facts that are well pleaded; not conclusions of law or forced conclusions from the facts.

2. COUNTIES: Drains: Duty of County Court to Maintain Drainage Ditches. It was the statutory duty of the county court to maintain the drainage ditches and it had authority to contract for the work of cleaning out and redredging the ditches.

3. COUNTIES: Drains: Taxation: Maintaining Drainage Ditches: Authority to Levy Tax and Issue Warrants. The county court had authority to levy a tax and issue warrants in payment for work done in maintaining the drainage ditches. And there is no charge of fraud or bad faith.

4. COUNTIES: Drains: Interest: Right to Interest on Warrants. The contractor had the right to receive interest on unpaid warrants.

5. JUDGMENTS: Counties: Drains: Prior Judgment Res Judicata. The prior judgment on the warrants is res judicata and plaintiffs are barred from litigating issues that could have been raised in the prior action.

6. JUDGMENTS: Counties: Drains: Collateral Attack on Prior Judgment Not Permitted. There was no fraud in the procurement of the prior judgment, so a collateral attack in equity may not be made.

7. JUDGMENTS: Drains: Landowners Bound by Judgment Against Drainage District. Under the doctrine of privity and virtual representation the landowners are bound by the prior judgment against the drainage district.

Appeal from Stoddard Circuit Court; Hon. R.B. Oliver III, Judge.

AFFIRMED.

C.A. Powell for appellants.

(1) Since the provisions of Sections 12435 and 12436 Mo. R.S.A. were not complied with when the work was done in connection with recleaning the ditches of the appellant drainage district in 1936 and 1937 and for which work the warrants involved in this cause were issued in the years 1936 and 1937 and since the provisions of Sections 12613 et seq. Mo. R.S.A. were not complied with, the only tax that could be levied for the payment of said warrants is the maintenance tax provided for in Section 12434 Mo. R.S.A., and that could be levied only in the years 1936 and 1937, the years in which the work was done and in which the warrants were issued, and therefore, none of the money now in the maintenance fund of said district, all which was derived from the maintenance tax levied in the year 1948, and none of the money to be derived from maintenance taxes levied or to be levied in years subsequent to 1948 can be used to pay said warrants nor the judgment obtained thereon. Secs. 12435, 12436, 12434 Mo. R.S.A. (1929 Mo. R.S. sec. 10844 as amended in 1939). (2) Even if all of the other provisions of Sec. 12435 and Sec. 12436 Mo. R.S.A. had been complied with, since the county court did not direct that the tax to pay for said improvements be paid in annual installments, not exceeding five, a tax could be levied to pay said warrants only during the years 1936 and 1937, the years said work was done and said warrants were issued. Sec. 12436 Mo. R.S.A. (3) The maximum amount of maintenance tax which can be levied in any one year by the county court on the land in the appellant drainage district is ten per cent of the original cost of construction. Sec. 12434 Mo. R.S. A; Cunningham Realty Co. v. Drainage Dist. No. 6 of Pemiscot County, 40 S.W.2d 1086, 226 Mo. App. 1. (4) The ten per cent of the original cost of construction maintenance tax provided for in Section 12434 Mo. R.S.A. can be used only for current maintenance expenses, that is, for expenses incurred during the year in which said maintenance tax is levied. Therefore, the money which is now in the maintenance fund of the appellant drainage district and which is derived from taxes levied in 1948, and the money to be derived from maintenance taxes levied or to be levied in years subsequent to 1948 cannot be used to pay the warrants involved in this case, which were issued in 1936 and 1937 for work done in 1936 and 1937. Sec. 12434 Mo. R.S.A. (1929 Mo. R.S. Sec. 10844 as amended in 1939). (5) If work sought to be done in any one year is in excess of ten per cent of the original cost of construction, the procedure provided for in what are now Sections 12435 and 12436 Mo. R.S.A. should be followed. Otherwise, if the county court could do an unlimited amount of work in any one year, in excess of ten per cent of the cost of construction, and could thereafter continue to levy taxes to pay for that work, no purpose exists for the enacting of what are now Sections 12435 and 12436 Mo. R.S.A. 59 C.J., pp. 1053-4, sec. 622; Hull v. Baumann, 131 S.W.2d 721, 345 Mo. 159; State ex rel. Halsey v. Clayton, 126 S.W. 506, 226 Mo. 292; Graves v. Little Tarkio Drainage Dist. No. 1, 134 S.W.2d 70, 345 Mo. 557. (6) Since the appellant drainage district is a creature of the statutes of this state, it cannot levy any taxes to pay warrants for work done or exercise any other power unless such power is expressly or impliedly authorized by statute. Therefore, the only method for paying for the work done in 1936 and 1937 was by levying the maintenance tax during those years in pursuance to Section 12434 Mo. R.S.A. For the same reason, the county court had no right to insert in the warrants a provision for the payment of interest. Grand River Drainage Dist. of Cass and Bates Counties v. Reid, 111 S.W.2d 151, 341 Mo. 1246; Drainage Dist. No. 23 of New Madrid County v. Hetlage, 102 S.W.2d 702, 231 Mo. App. 355. (7) The law of this state, under which county warrants are issued, sold, transferred, assigned, presented for payment, and paid, shall apply to all warrants issued by any drainage or levee districts in Missouri organized under any existing, special or future law of this state. Sec. 12474 Mo. R.S.A.; State ex rel. Nolen v. Nelson, 275 S.W. 927, 310 Mo. 526; State ex rel. Frazer v. Holt County Court, 37 S.W. 521, 135 Mo. 533. (8) The warrants involved in this case are barred and should not be paid because they were not presented to the treasurer and ex-officio collector of Stoddard County for payment within five years after they were issued, and in fact have never been presented for payment. Sec. 13835 Mo. R.S.A.; State ex rel. Frazer v. Holt County Court, 37 S.W. 521, 135 Mo. 533; Sec. 1013 Mo. R.S.A. (9) The warrants should not be paid because they were not presented for payment by William Crumpecker, the payee named in said warrants, nor by his assignee, and were not protested and the treasurer and ex-officio collector did not certify on the back thereof that they had been presented for payment and that there were no funds available to pay the same. Sec. 13833 Mo. R.S.A.; Isenhour v. Barton County, 88 S.W. 759, 190 Mo. 163; Fink v. Barton County, 88 S.W. 765, 190 Mo. 182. (10) The warrants should not be paid to the respondents and they have acquired no right in said warrants because the payee, William Crumpecker, endorsed them in blank and the respondents are not named as assignees in said endorsements on said warrants. Sec. 13834 Mo. R.S.A.; Isenhour v. Barton County, 88 S.W. 759, 190 Mo. 163. (11) Since the warrants were endorsed in blank, neither the respondents nor any holder except William Crumpecker, the payee, could lawfully present them for payment. Isenhour v. Barton County, 88 S.W. 759, 190 Mo. 163; Fink v. Barton County, 88 S.W. 765, 190 Mo. 182. (12) Even though there is a provision written on the face of the warrants involved in this case as to interest, none of them bear interest because they were never presented for payment. Interest on warrants begins to accrue only when presented for payment. Robbins v. Lincoln County Court, 3 Mo. 57; Skinner v. Platte County, 22 Mo. 437; Secs. 3226, 13803 Mo. R.S.A. (13) The county court has no authority to write on such warrants a provision as to interest. The statute prescribing the form for warrants does not provide for interest. Sec. 13831 Mo. R.S.A.; Grand River Drainage Dist. of Cass and Bates Counties v. Reid, 111 S.W.2d 151, 341 Mo. 1246; Drainage Dist. No. 23 of New Madrid County v. Hetlage, 102 S.W.2d 702, 231 Mo. App. 355; 15 C.J., pp. 606-7, sec. 314. (14) Since Yewell Lawrence was the county clerk at the time he and the respondents Leo A. Fisher, Jr., William Ringer, R. Kip Briney, Pearl Lawrence, C.S. Prather, John Crosser and E.E. Good obtained the warrants from the payee, William Crumpecker, for less than their par value, neither he nor his associates acquired any lawful interest nor right therein and they cannot collect them because their attempted purchase was void, illegal and against public policy. Sec. 4486 Mo. R.S.A.; Miller v. Bowen Coal Mining Co., 40 S.W.2d 485; 13 C.J., p. 421, sec. 352; State ex rel. City of St. Louis v. Public Service Comm., 56 S.W.2d 398, 331 Mo. 1098. (15) Even though the judgment obtained by the respondent Bank of Advance December 19, 1941, is considered as a valid judgment, the warrants must be properly presented for payment within five years after they were issued and they must have been properly assigned before they can be paid. Sec. 13835 Mo. R.S.A.; Wilson v. Knox County, 34 S.W. 45, 132 Mo. 387; State ex rel. Wright v. Hortsman, 50 S.W. 811, 149 Mo. 290; Ballard v. Standard Printing Co., 202 S.W.2d 780, 356 Mo. 552; Sturdivant Bank v. Stoddard County, 58 S.W.2d 702, 332 Mo. 568; 15 C.J. 606, sec. 313 n. 45 a. (16) The warrants did not merge with the judgment; the judgment did not create a new debt; and the judgment is subject to all of the restrictions and limitations applied to the warrants. Ballard v. Standard Printing Co., 202 S.W.2d 780, 356 Mo. 552; Douglas County v. Bank of Ava, 65 S.W.2d 104, 333 Mo. 1195; 34 C.J., p. 754, sec. 1163 n. 48. (17) The default judgment obtained by the Bank of Advance on the warrants involved is not a valid judgment and is subject to attack in this case, because the obtaining of the warrants endorsement in blank was illegal and against public policy. That fact was exclusively within the knowledge of the respondent Bank of Advance. The bank's petition falsely alleged that it was designated as assignee in the assignment. 34 C.J., p. 458. sec. 715, n. 91; 34 C.J., p. 461, sec. 721, n. 26 (e). (18) The respondent Yewell Lawrence, who was then the county clerk of Stoddard County, was one of the actual purchasers and owners of the warrants involved and had obtained them for less than their par value from the payee, William Crumpecker. The bank's petition falsely alleged that it was the owner and failed to allege that the said county clerk was an owner. Sec. 4486 Mo. R.S.A.; 34 C.J., p. 458. sec. 715 n. 91. (19) The Bank of Advance had no interest in said warrants, was not the legal party in interest, and had no right to bring the suit in its name. Sec. 849 Mo. R.S.A.; 34 C.J., p. 450, sec. 705 n. 6. (20) The default judgment obtained by the Bank of Advance on said warrants is not res judicata as to the respondents Leo A. Fisher, Jr., William Ringer, R. Kip Briney, Yewell Lawrence, Pearl Lawrence, C.S. Prather, John Crosser and E.E. Good, because they are strangers to the judgment; they were not parties to the suit; they were not privy of nor in privity to the respondent Bank of Advance as to the judgment; and the Bank of Advance had no right, legal or equitable, to the warrants when it brought the suit and obtained the judgment thereon. Therefore, as to said respondents, who at the time said suit was brought and who now own and have said warrants in their possession, the appellants can raise all defenses that they could have raised had the Bank of Advance not obtained the judgment on said warrants. McIntosh v. Faulke, 228 S.W.2d 757; State ex inf. Kell v. Buchanan, 210 S.W.2d 359; Baur v. Dirhold, 82 S.W.2d 133; Moffett v. Commerce Trust Co., 193 S.W.2d 588, 354 Mo. 1098; State ex rel. Terry v. Holtkamp, 51 S.W.2d 13, 330 Mo. 608; Little River Drainage Dist. v. Sheppard, 7 S.W.2d 1013; Stewart v. City of Springfield, 165 S.W.2d 626, 350 Mo. 234; Quingley v. Mexico Southern Bank, 80 Mo. 289; Henry v. Woods, 77 Mo. 277; 34 C.J., p. 756, sec. 1165, p. 973, sec. 1391, p. 984, sec. 1405, p. 996, sec. 1414. (21) The respondents William Ringer, Leo. A. Fisher, Jr., R. Kip Briney, Yewell Lawrence, Pearl Lawrence, C.S. Prather, John Crosser and E.E. Good are not privies of the respondent Bank of Advance because the said respondents owned the warrants before the suit was brought by the Bank of Advance on the warrants. To be privies they must have acquired their interest and rights in and to the warrants from the Bank of Advance after the bank instituted the suit on the warrants. Hocken v. Allstate Ins. Co., 147 S.W.2d 182, 235 Mo. App. 991; Abington v. Townsend, 197 S.W. 253, 271 Mo. 206; Dull v. Blackman, 169 U.S. 243, 18 S.Ct. 333, 42 L.Ed. 733; 34 C.J., pp. 973-4, sec. 1391, n. 35, pp. 1010-2, sec. 1432. (22) The judgment obtained by the Bank of Advance on said warrants is not res judicata as to the respondent Jonas (Jack) Matthews, the treasurer and ex-officio collector of Stoddard County for the reasons that neither he nor any of his predecessors in office were parties to the suit upon which that judgment was obtained. See authorities cited under Point (20). (23) Section 13835 Mo. R.S.A. expressly provides that if warrants are not presented for payment within five years after the date thereof the same "shall not be paid". This restriction as to the not paying if not presented exists even though a judgment was obtained on the warrants. Sec. 13835 Mo. R.S. A; Wilson v. Knox County, 34 S.W. 45, 132 Mo. 387. (24) The judgment obtained by the Bank of Advance on said warrants is not res judicata as to the appellant Drainage District No. 1 Reformed, because the respondents Leo A. Fisher, Jr., and his associates were not parties to that suit nor privies thereto and is not res judicata as to the other appellants because they were not parties to that suit nor privies thereto. See authorities cited under Point (20). (25) Since the individual appellants (all those other than the appellant drainage district) are landowners and taxpayers in the district, they are proper parties and have the right to bring this action to enjoin the payment of the warrants involved because such payment would be an illegal disposition of the funds of the district. Harris v. Langford, 211 S.W. 19, 277 Mo. 527; 32 C.J., p. 270, sec. 425, n. 35; Black v. Ross, 37 Mo. App. 250; King v. Priest, Board of Police Commissioners, 206 S.W.2d 547. (26) The mere fact that the landowners in the drainage district have been paying maintenance taxes levied by the county court does not constitute laches and is no defense on behalf of the respondents because the payment of such taxes and the delay in bringing any action to enjoin the payment of the warrants has not worked to the disadvantage of the respondents. Stephenson v. Stephenson, 171 S.W.2d 565, 351 Mo. 8; Oetting v. Green, 166 S.W.2d 548, 350 Mo. 457; State ex rel. and to Use of Breit v. Shain, 119 S.W.2d 758, 342 Mo. 1148; Pryor v. Kopp, 119 S.W.2d 228, 342 Mo. 887. (27) The motion of the respondents to dismiss the appellants' petition admits as true all of the material facts well pleaded in the petition. Therrien v. Mercantile Commerce Bank Trust Co., 360 Mo. 149, 227 S.W.2d 708; Osborn Paper Co. v. Carrold Osborn Paper Co., Inc., 226 S.W.2d 408; Hager v. Major, 186 S.W.2d 564, 353 Mo. 1166.

M. Walker Cooper and Joe Welborn for respondents.

(1) Drainage District No. 1 Reformed, having been organized under the provisions of what is now Article 3 of Chapter 79 of the Missouri Revised Statutes for 1939. The legislature of this state has by law delegated to the several county courts of the state the duty to maintain efficiency of such drainage districts, including Drainage District No. 1 Reformed, and has imposed the duty and delegated the power of maintaining, preserving, restoring, repairing, strengthening and replacing the drains, ditches and levees thereof. Sec. 12433, R.S. 1939. (2) The county court, as a court, manages county court drainage districts under the statutes in the same manner as it manages the county's affairs. Drainage Dist. No. 23 v. Hetlage, 231 Mo. App. 355, 102 S.W.2d 702. (3) If in the maintenance of the ditches, drains and levees of the district it is only necessary to maintain, preserve, restore, repair, strengthen or replace such drains, ditches and levees to their original size and condition the court can proceed under the maintenance tax section, or section, or Section 12434, R.S. 1939. (4) If the county court is cleaning and restoring the ditches, drains and levees to their original size and condition it can levy a maintenance tax to be used in paying for such work under the provisions of Section 12434, R.S. 1939. (5) Section 12434, R.S. 1939, does restrict or limit the annual levy for maintenance tax to 10 per cent of the original cost of construction but it does not restrict or limit the annual maintenance purposes, nor does it restrict or limit the amount of maintenance work that can be done in any one year to the amount that can be paid out of the maintenance tax that can be levied for that year. Sec. 12434, R.S. 1939; Graves v. Little Tarkio Drainage Dist. No. 1, 315 Mo. 557, 134 S.W.2d 70; Camden Special Road Dist. v. Willow Drainage Dist., 199 S.W. 716; Cunningham Realty Co. v. Drainage Dist. No. 6, 26 Mo. App. 1, 40 S.W.2d 1086. (6) Plaintiffs' second amended petition does not allege any fraud or fraudulent acts by the county court or by William Crumpecker, the contractor, in connection with the work done by said contractor in restoring the ditches of the drainage district to their original size and condition. The county court was delegated the duty to have the work done and had been given the power to issue the warrants in controversy and each warrant drawn by the court on the maintenance fund of the district is both a judicial ascertainment and a written acknowledgment of indebtedness by the district to the contractor. International Bank of St. Louis v. Franklin County, 65 Mo. 105; Graves v. Little Tarkio Drainage Dist. No. 1, 315 Mo. 557, 134 S.W.2d 70; State ex rel. v. Nelson, 275 S.W. 927. (7) Until all of the maintenance warrants issued to the contractor, William Crumpecker, have been paid the county court has both the authority and the duty to levy the maximum amount of maintenance tax, permitted by statute, each year for the purpose of maintaining the efficiency of the drainage district and for the payment of these maintenance warrants. Graves v. Little Tarkio Drainage Dist. No. 1, 315 Mo. 557, 134 S.W.2d 70. (8) We cannot imagine that any legislative body would intend to provide for the creation of a valid indebtedness and at the same time devise a scheme whereby the debtor could repudiate such obligation. State ex rel. v. Bates, 138 S.W. 482. (9) Section 12474, R.S. 1939, does provide that the law of this state, under which county warrants are issued, sold, transferred, assigned, presented for payment and paid shall apply to all warrants issued by any drainage or levee district in Missouri organized under any existing, special or future law of this state, but it does not provide that the law of this state under which county warrants are cancelled or barred by limitation shall apply to all warrants issued by such drainage or levee districts. Williams v. Missouri Valley Drainage Dist., 186 S.W.2d 209. (10) For that reason, Section 13835, R.S. 1939, is not embraced within the provisions of Section 12474, R.S. 1939, either by specific reference or by inferential language. Williams v. Missouri Valley Drainage Dist., 186 S.W.2d 209. (11) Warrants issued by drainage districts are subject to the general ten year statute of limitations, or Section 1013, R.S. 1939, and are not subject to the special statute of limitations applicable to county warrants. Williams v. Missouri Valley Drainage Dist., 186 S.W.2d 209. (12) Since Section 13835, R.S. 1939, the special statute of limitations applicable to county warrants, does not apply to drainage warrants, Section 13833, R.S. 1939, relative to the presentment for payment of county warrants is beneficial to the warrant holder only. The provisions of this statute are for his benefit. Ballard v. Standard Printing Co., 202 S.W.2d 781; Williams v. Missouri Valley Drainage Dist., 186 S.W.2d 209. (13) The provisions of Section 13833, R.S. 1939, by the additional provisions of Section 12474, R.S. 1939, are cumulative to the right of action by suit and the warrant holder may take advantage of the provisions of Section 13833, R.S. 1939, for the purpose of obtaining interest on all warrants or he may proceed by suit to a judgment and obtain interest on the judgment. Sections 12474, 13833, R.S. 1939; Pullum v. Consolidated School Dist., 211 S.W.2d 31. (14) We find no provision in the county court drainage district laws which prohibits the county court from contracting to pay interest on the warrants so issued. If such interest is not provided by the contract with the contractor and is not provided for in the warrant the contractor can, upon receipt of each warrant, present it for payment to the county treasurer and thereby obtain the interest, or he can immediately file suit upon the warrant and obtain interest upon his judgment. Secs. 12474, 13833, R.S. 1939; Pullum v. Consolidated School Dist., 211 S.W.2d 31. (15) The provision in the contract with Crumpecker providing for the warrants issued to him to bear six per cent interest and the provision in the warrants themselves for them to bear six per cent interest was only a contract provision between the county court and Crumpecker, the contractor, and the compliance by the court with such contract provision, which eliminated for the contractor the time, trouble and expense of presenting and protesting each warrant issued to him for the payment of his work or reducing such warrants to judgment in order to obtain the warrant. Secs. 12474, 13833, R.S. 1939; Pullum v. Consolidated School District, 211 S.W.2d 31. (16) Appellants in this suit actually seek to enjoin the payment of a judgment rendered in 1941 because the warrants involved in the 1941 judgment and mentioned in plaintiff's amended petition were reduced to judgment in 1941 and it is that judgment and not the warrants which now evidences the debt of the appellant drainage district. Pullum v. Consolidated School Dist. No. 5 of Stoddard County, 211 S.W.2d 30, 357 Mo. 858; United States ex rel. Morton v. King, County Treasurer, 74 F. 493. (17) The warrants and any cause of action on them were merged into the judgment which the appellants now seek to set aside. United States ex rel. Harshman v. County Court of Knox County, 30 L.Ed. 1152, 122 U.S. 306, 7 S.Ct. 71; Schuler v. Israll, 7 S.Ct. 648, 120 U.S. 506, 30 L.Ed. 707. (18) A petition to set aside a default judgment rendered in 1941 for alleged fraud must contain allegations of some extrinsic fraud, in actually obtaining the judgment; some fraud which prevented the plaintiff from making some defense to the original suit. Wolf v. Brooks, 177 S.W. 337; Smith v. Sims, 77 Mo. 269; Winchell v. Gaskill, 190 S.W.2d 266; Wabash Railroad Co. v. Mirrielees, 182 Mo. 126, 81 S.W. 437. (19) An alleged false allegation as to the ownership of the warrants is not a ground for setting aside a judgment based on such allegation. Wolf v. Brooks, 177 S.W. 337; Smith v. Sims, 77 Mo. 269. (20) The alleged fact that the Bank of Advance was not the legal owner of the warrants at the time the original judgment was obtained is no ground for setting aside the judgment because of such alleged fraud. Mott v. Bernard, 70 S.W. 1093, 94 Mo. App. 265; American Employers Ins. Co. v. Manufacturers M. Bank, 85 S.W.2d 174; Craig v. Mason, 64 Mo. App. 342. (21) The possession of the warrants and the presentation of the warrants at the trial by the Bank of Advance are prima facie evidence of ownership of said warrants. 15 C.J., p. 610, sec. 319. (22) The defense that the Bank of Advance was not the true owner of the warrants at the time judgment was had thereon, was a defense available to the appellant drainage district at the time of the suit on the warrants by the Bank of Advance and the district is now barred from asserting that defense as a ground for setting aside the judgment. Wolf v. Brooks, 177 S.W. 337; Mott v. Bernard, 70 S.W. 1093, 94 Mo. App. 265; Patterson v. Yancey, 97 Mo. App. 681, 71 S.W. 845; Einstein v. Strother, 182 S.W. 122. (23) Appellants' second amended petition is fatally defective because it fails to allege that the appellant drainage district, or the then County Court of Stoddard County, as the governing body of appellant drainage district, exercised any diligence in preparing any defense against the original suit on the warrants in question, if it had such defense. In fact the petition shows on its face that the appellant district exercised no diligence, but took the allegations of the petitions for granted. Wabash Railroad Co. v. Mirrielees, 81 S.W. 437, 182 Mo. 126; Smith v. Sims, 77 Mo. 269. (24) The judgment in favor of the Bank of Advance on the warrants involved in this action is a good judgment, and that portion of said judgment allowing interest on the warrants from the date of their issue is valid and binding on the appellant drainage district. Maxey v. Maxey, 212 S.W.2d 810. (25) The judgment, itself, should bear interest at the rate of six per cent per annum, from the date of the judgment. Pullum v. Consolidated School Dist. No. 5, of Stoddard County, 211 S.W.2d 30, 357 Mo. 858. (26) If the landowners of the district had a complaint at the time of the issuance of the warrants, they are now estopped to assert said claim, because the amended petition shows on its face that the district and the landowners have long acquiesced in the work done and the maintenance taxes levied to pay the said warrants, issued for the purpose of doing said work, and have received the benefits from said work. Graves v. Tarkio Drainage District, 134 S.W.2d 70. (27) The amended petition shows on its face that this action is an attack on the legality of official acts of the County Court of Stoddard County by seeking to enjoin a judgment on said acts. Such an action cannot be maintained. Dallas County v. Huidekoper, 25 L.Ed. 974. (28) The second amended petition shows on its face that the County Court of Stoddard County, as the governing body of the appellant drainage district was duly and regularly served with process in the suit by the Bank of Advance on the warrants here involved, and the petition further shows on its face that said County Court of Stoddard County had full notice of said action and had an opportunity to present any defense which may have existed to said action, but failed to present any defense. Said judgment is now res adjudicata to any and all defenses to said warrants. Patterson v. Yancy, 71 S.W. l.c. 848; Bodine v. Farr, 182 S.W.2d 173. (29) The judgment in the suit by the Bank of Advance is res adjudicata as to all allegations properly set forth in the petition. 128 A.L.R. 480. (30) The petition shows on its face that the appellants have been guilty of laches in waiting almost ten years after judgment was obtained on the warrants, and almost fifteen years after the date of the issuance of the warrants to seek relief on said warrants. They have waited until after the Statute of Limitations has barred any further recovery by respondents on said warrants. State on inf. Wallach, Pros. Atty. ex rel. H.B. Deal Co. v. Stanwood, 208 S.W.2d 291; Williams v. Missouri Valley Drainage Dist., 238 Mo. App. 1206, 186 S.W.2d 209.

[569] CONKLING, P.J.

Plaintiffs (a Drainage District and certain landowners and taxpayers therein) appealed from the order of the circuit court of Stoddard County sustaining the defendants' motion to dismiss the second amended petition filed by plaintiffs, and entering judgment for defendants, in an action wherein plaintiffs sought to enjoin the payment of sixty-six certain drainage district maintenance warrants drawn and issued by the county court of Stoddard County in 1936 and 1937 in the total amount of $17,303.20. In the petition plaintiffs also sought judgment against defendants for $16,145.72 alleged to have been wrongfully paid defendants on certain other maintenance warrants of said drainage district.

It appears from the petition before us that the appellant-plaintiff Drainage District No. 1 Reformed of Stoddard County, Missouri (hereinafter referred to as the District) was organized in 1910 by the County Court of Stoddard County, pursuant to what is now Article 3 of Chapter 79 of R.S. Mo. 1939, Mo. R.S.A.; that in June, 1936, upon petition of seventy-two landowners in the district to the county court, that such court have the drainage ditches in said district cleaned out and redredged to their original capacity, the county court, as the governing body of said drainage district, contracted with one William Crumpecker to do such work, and, by contract, employed a civil engineer to supervise such recleaning and redredging; that thereafter in the years 1936 and 1937, the county court issued the warrants in question here (and others) to Crumpecker, drawn on the maintenance fund of said District for such recleaning and redredging, in the total amount of $40,710.89; and that all of those warrants have been paid except the $17,303.20 face amount thereof sought in this action to be repudiated. The warrants drew 6% interest from date of issuance. From 1936 to 1948, inclusive, the county court levied a maintenance tax on the land in the district, which has been largely used to pay the warrants issued to Crumpecker.

It further appears that the Bank of Advance, Stoddard County, Missouri, on November 15, 1941, filed its petition (Case No. 14740) in the Circuit Court of Stoddard County in 84 Counts (each count upon a separate warrant) seeking judgment upon the then unpaid warrants issued originally to Crumpecker for doing the above mentioned recleaning and redredging. The defendants in that action were the plaintiff-appellant Drainage District No. 1 Reformed of Stoddard County, Missouri, and the then three members of the county court of Stoddard County. The 66 warrants involved in the instant case (representing a total face value of $17,303.20) with the exceptions of warrants numbered 11039, 10704 and 11397 (which latter three totalled only $616.12), were included in those sued upon by the Bank of Advance in 1941. All the other warrants sued upon in the case by the Bank of Advance have since been paid.

It further appears that in the above mentioned suit by the Bank of Advance (hereinafter sometimes referred to as Case [570] No. 14740) it was alleged in each count thereof that the county court, as the governing body of the drainage district, "had lawfully entered into a contract with Wm. Crumpecker for the redredging and recleaning of the drainage ditches of the defendant Drainage District and that * * * the said Wm. Crumpecker * * * did fully and completely perform all the terms, agreements and conditions of said contract * * * that * * * the defendant Drainage District No. 1 Reformed * * * was lawfully indebted to the said Wm. Crumpecker * * * for excavation work done in pursuance to said contract, and that the County Court * * * found and adjudged that the defendant Drainage District owed and was lawfully indebted to the said Wm. Crumpecker for work done in pursuance to said contract (in the amount of each warrant sued on in each count and the county court ordered that a Maintenance Warrant be drawn on the County Treasurer in the proper sum) in proper form payable out of any money in the treasury appropriated for Drainage District No. 1 Reformed Maintenance, be issued and signed. (etc.) * * * that said warrant was so issued and signed * * * and attested * * * and that said warrant was lawfully issued on said debts in favor of the said Wm. Crumpecker * * * to bear interest * * * at the rate of six per cent per annum until paid; that thereafter for valuable consideration * * * the said Wm. Crumpecker assigned and sold said warrant to this plaintiff (Bank of Advance); that the plaintiff is the legal holder and owner of said warrant; that demand has been made upon the Treasurer of Stoddard County for the payment of said warrant; that payment was refused by said Treasurer for the reason that there was no money in the treasury for the purpose of paying said warrant," etc.;

It also further appears from the judgment in that case: that defendants in Case No. 14740 were "duly notified by personal service of summons by the Sheriff of Stoddard County, Missouri, * * * notifying them to appear, answer and plead"; that no defendant filed any pleading in the case or appeared therein; that on December 19, 1941, the plaintiff bank (of Advance) secured a default judgment in the cause in the total sum of $34,945.93; that in said judgment the court found defendants failed to appear "within the time required by law * * * and being now three times solemnly called, come not but make default;" that plaintiff submitted its cause to the court for hearing and "the court doth find that plaintiff is entitled to recover (upon said warrants) * * * $34,945.93 * * * together with interest on said amount in the sum of 6% per annum from date of this judgment until paid," etc.;

The instant petition further alleges that the defendants in Case No. 14740 relied upon the allegations of the petition in that case, were misled thereby, believed them true and "made default in said cause," but, that if defendants in Case No. 14740 had known certain matters (in the instant petition alleged to have existed) "said defendants (in case No. 14740) could and would have pleaded as a defense" said certain matters "which said plea would have been a good and lawful defense to said cause of action," in case No. 14740. It is also alleged that the instant individual plaintiffs are landowners within the district and as such are obligated to pay such maintenance taxes as are lawfully levied; and that the instant individual defendants (other than Jonas (Jack) Matthews, Treasurer and Ex-officio Collector of Stoddard County) hold and claim to own the warrants instantly in issue.

The instant petition further alleges that certain of the instant defendants have collected principal and interest on the judgment and warrants in question in the total amount of $16,345.72, and prays a decree (1) enjoining the defendant Treasurer and Ex-officio Collector of the county, and all his successors in office from paying any and all of the warrants as to either principal or interest, (2) enjoining defendants or any of them from collecting or attempting to collect upon the above judgment or warrants, (3) declaring the judgment (in case No. 14740) and the warrants void, (4) requiring the production of the warrants for cancellation, (5) that if the warrants are valid, the interest heretofore paid [571] thereon be offset, and (6) finding that defendants are indebted to the drainage district in the sum of $16,145.72.

The proceedings in the county court of Stoddard County, the said warrants issued by that court, and the judgment of the circuit court of that county in case No. 14740 are attacked and sought to be declared void on many grounds. Plaintiffs' contentions may be compressed, classified and stated as follows: The warrants are attacked, it being alleged (1) there was no proper endorsement and assignment by Crumpecker, (2) no presentment of the warrants for payment to the county treasurer, and (3) no certification by the county treasurer that there were no funds to pay them. The county court proceedings are attacked, it being alleged that (1) the county court had no authority to proceed except under R.S. Mo. 1939, Secs. 12435 and 12436, and that the court did not comply with the procedural provisions of those sections as to the engineer's report, notice, hearing, division of costs, etc., and that the maintenance tax levy made by the county court was therefore illegal, and (2) the county court had no authority to issue said warrants with an interest bearing provision. The judgment obtained by the Bank of Advance in Case No. 14740 is attacked, it being alleged that (1) the Bank did not own the warrants and therefore had no right to bring suit or have judgment, and (2) the Bank's petition in that case contained untrue allegations of fact.

The petition before us contains many forced and unallowable conclusions of the pleader which are sought to be drawn from matters stated as facts, and many conclusions of law sought to be drawn from certain statutes cited. But the defendants' motion to dismiss admits only the material facts that are well pleaded; the motion does not admit the pleaders' conclusions of law nor his forced conclusions from the facts. Therrien v. Mercantile-Commerce Bank Trust Co., 360 Mo. 1002, 277 S.W.2d 708, Bernhardt v. Long, 357 Mo. 427, 209 S.W.2d 112.

In R.S. Mo. 1939, Sec. 12433, Mo. R.S.A., the General Assembly imposed the duty and delegated to the county court the power "to maintain the efficiency" of county court drainage districts. Those courts are there "vested with the continuous management and control of said districts with the duty and power of maintaining, preserving, restoring, repairing, strengthening and replacing the drains, ditches and levees thereof." Under the power granted and the duty delegated in that section to "maintain the efficiency" of the district it was the county court's duty "to clean out and redredge the ditches in said district to their original capacity" without petition or suggestion by any of the landowners in the district. In contracting for the work done by the contractor in this case, i.e., "to clean out and redredge the ditches * * * to their original capacity" we rule that the county court could proceed under the power given it in Section 12433.

Section 12434 gives the county court the power to levy a "maintenance tax" upon each tract of land within the district "to maintain, reserve, restore, repair, strengthen and replace the drains, ditches, levees and other works of the district for whose benefit such tax is levied." Only by the levy of the maintenance tax could the work of cleaning and redredging have been paid for. The county court has the statutory authority to levy the tax and to issue warrants drawn upon the maintenance funds of the district to pay for such work.

The petition alleges no fraud of the 1936 county court or by Crumpecker, the contractor, and the authority granted the county court of necessity "implies the right to incur the liability to pay for the work." Graves v. Little Tarkio Drainage Dist. No. 1, 345 Mo. 557, 134 S.W.2d 70, 78. There is no charge of fraud, no allegation of bad faith and no claim that the county court did not use its best judgment. The work was done in 1936, the warrants were reduced to judgment in 1941 but this action was not begun until 1949.

These main questions are thus presented for our ruling, (1) are plaintiffs' attacks [572] upon the county court proceedings and upon the warrants issued by that court foreclosed by the final judgment secured in 1941 against the District by the Bank of Advance in case No. 14740, and (2) may that judgment be now set aside and held void in this proceeding. It is seen from the above that the grounds upon which the warrants are attacked are clearly alleged in the petition filed by the Bank of Advance in case No. 14740, in which case the Bank had judgment. We have above ruled that the statute (Sec. 12433) gave the county court the power to contract with Crumpecker for the work which Crumpecker did and for which these warrants were issued. Crumpecker's work involved only the cleaning out and redredging of the ditches to their original capacity, that the efficiency of the drainage district might be thus maintained. At no place in the petition does it appear that Crumpecker's work involved or included any enlargement of the drainage system, any new work or any such improvement as is contemplated by Sections 12435 and 12436. Neither Section 12433 giving the power and authorizing the "maintaining, preserving and restoring" of the ditches, nor Section 12434 authorizing the levying of a maintenance tax for those purposes restricts or limits the amount of maintenance work that may be done in any one year to the amount that can be paid for out of the maintenance tax which can be levied for any one year.

As to the question of the warrants containing an unauthorized provision for interest, we not only find no provision in Article 3, of Chapter 79 forbidding the county court to contract to pay interest on such warrants (such as the provision found in Mo. R.S.A. § 10366, forbidding the payment of interest on school warrants) but it may be observed that upon receipt of each such warrant the contractor could present it to the county treasurer for payment and thereby start the accrual of interest. Or the contractor could file suit upon each warrant as received and obtain interest upon his judgment. Mo. R.S.A. § 12474 and § 13833, and Pullum v. Consolidated School Dist. No. 5, 357 Mo. 858, 211 S.W.2d 30. In any event the petition of the Bank of Advance alleged in each count as to each of the 84 warrants there sued on, "that said warrant was to bear interest from the date of its issuance at the rate of six per cent (6%) per annum until paid", and the prayer in each count of that petition prayed judgment for such interest.

This brings us to a consideration of whether the matters specifically pleaded in the petition of the Bank of Advance in case No. 14740 are foreclosed by the judgment in that case. Can the questions raised by the issues tendered by the affirmative fact allegations of that petition, be again raised in this case, or were such questions forever foreclosed by the judgment in Case No. 14740?

In 31 C.J.S. Estoppel, § 9, p. 195, it is stated: "The rule of estoppel by record bars a second action between the same parties on an issue necessarily raised and decided in the first action; so, an issue of ownership of property and its incidents thus adjudicated cannot be relitigated in the second action between the same parties. It has been held that the rule prevents a party not only from litigating again what was actually litigated in the former case, but also from litigating what might have been litigated therein." In 30 Am. Jur. Judgments, § 178, p. 920, et seq., that rule is stated in these words: "It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different [573] purposes, and seek different relief." See also, McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, 761, Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760, Powell v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408, Healy v. Moore, (Mo. App.) 100 S.W.2d 601, Maddocks v. Gushee, (Me.) 113 A. 300, and annotation 128 A.L.R. 472, et seq.

Applying that rule to the facts here the contention of plaintiffs as to the claimed infirmities of the warrants, their contentions as to the invalidity of the county court proceedings, and their contentions that the Bank of Advance did not own the warrants cannot be reopened or relitigated in this case. The District had full opportunity to litigate those matters in the Bank of Advance case. It cannot be now heard to complain of its own failure to do so. If the Bank's petition in that case contained untrue allegations of fact, that time and case (No. 14740) presented the appointed time, case and forum in which to deny and contest those alleged facts. Having failed to there do so the opportunity is no longer available. There must be a sometime end to litigation.

May plaintiffs now in this action in equity make collateral attack upon the judgment obtained upon the warrants by the Bank of Advance? We hold they may not. It is not here contended by the plaintiffs that in the Bank of Advance case, the court did not have jurisdiction of all the parties and of the subject matter of that action. Equity will not interfere with or hold void a judgment at law unless there was fraud in the procurement of the judgment extrinsic to the matters upon which the judgment was rendered. Winchell v. Gaskill, 354 Mo. 593, 190 S.W.2d 266, Wolf v. Brooks, (Mo. Sup.) 177 S.W. 377, 31 Am. Jur. Judgments, § 654, p. 230, et seq. Intrinsic fraud, which pertains merely to an issue involved in the action in which the judgment was obtained, is not sufficient to afford equitable relief. It is not contended and not alleged that there was any fraud practiced in the very act of obtaining that judgment. It is only contended that if the District had known certain matters about the warrants, and the proceedings leading up to their issuance, that it would have made a defense in the Bank of Advance case. But it did not do so. And no reason at all appears here why the judgment in the Bank's case should now be held void.

One other question remains for our ruling. It is finally contended by the plaintiffs that since the individual plaintiffs are landowners and taxpayers in the District they may enjoin a claimed illegal disposition of the District's maintenance funds; that, although the individual plaintiffs have paid maintenance taxes in the District, their delay in bringing this action does not constitute laches, and that, in any event, they are not bound by the judgment in the Bank of Advance case. On the contrary defendants contend that the individual plaintiffs, although concededly not parties to the Bank of Advance case, are, with the District, estopped, and that the judgment in case No. 14740 is res judicata as to all residents and taxpayers of the District. We agree with the contention of defendants.

In a similar case, where the question arose in a similar way, this court considered the identical contention at length, and, in a well-considered and soundly reasoned opinion (Powell v. City of Joplin, supra) said: "In the absence of fraud or collusion a judgment for or against a municipal corporation, county, town, school or irrigation district, or other local governmental agency or district, or a board or officers properly representing it, is binding and conclusive on all residents, citizens and taxpayers in respect to matters adjudicated which are of general or public interest such as questions relating to public property, contracts or other obligations. The rule is frequently applied to judgments rendered in an action between certain residents or taxpayers and a municipality, county or district or board or officer representing it, it being held that all other citizens and taxpayers similarly situated are represented in the litigation and bound by the judgment in the absence of [574] fraud or collusion. The rule is applicable to persons who have notice of the suit and even to persons without actual notice of the suit." And see also, State ex rel. Wilson v. Rainey, 74 Mo. 229, Clark v. Wolf, 29 Iowa 197, Harmon v. Auditor of Public Accounts, 123 Ill. 122, 13 N.E. 161, Rollins v. Board of Drainage Commissioners of McCracken Co. for Mayfield Drainage Dist. No. 1, et al., 281 Ky. 771, 136 S.W.2d 1094, Kersh Lake Drainage District v. Johnson, 203 Ark. 315, 157 S.W.2d 39, cert. den. 86 L.Ed. 1748. In State ex rel. Wilson v. Rainey, supra, we said (l.c. 235): "* * * a judgment against a county or its legal representatives, in a matter of general interest to all the people thereof, as one respecting the levy and collection of a tax, is binding not only on the official representatives of the county named in the proceeding as defendants, but upon all the citizens thereof though not made parties defendant by name. This we think is so both on principle and authority, for in suits of the character mentioned the legally constituted representatives of the county stand in the place of each citizen of the county who is liable to be called on as a tax-payer to contribute his proper proportion to liquidate the demand which a judgment may establish."

The rule just above stated is founded upon basic concepts of privity and virtual representation. The doctrine of virtual representation, well recognized in equity, is based upon considerations of necessity and paramount convenience and may be invoked to prevent a failure of justice. Brown v. Bibb. 356 Mo. 148, 201 S.W.2d 370, 374. The doctrine is applicable if (as here) the interest of the represented and the representative are so identical that the inducement and desire to protect the common interest may be assumed to be the same in each and if there can be no adversity of interest between them. The rule of Powell v. City of Joplin, supra, is not opposed to the fundamental principle that a stranger to a cause and to its subject matter is not bound by a judgment as to which he had no opportunity to be heard. But in the instant circumstances under the applicable principles and the broad policy of the law to bring litigation to an end the res judicata rule must be applied. And under the principles of that rule "privity" depends more upon the relation of the parties to the subject matter than upon their connection as parties with or any activity in the former litigation. Generally speaking, privies are those legally represented at the trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity of interest is found to exist, all are alike concluded and bound by the judgment. Cases cited in preceding paragraph, and 30 Am. Jur. Judgments, § 225, Taylor v. Sartorius, 130 Mo. App. 23, 108 S.W. 1089, 1094, Perkins v. Goddin, 111 Mo. App. 429, 85 S.W. 936, Wors v. Tarlton, 234 Mo. App. 1173, 95 S.W.2d 1199, 1207. Plaintiffs' final contention must be denied.

The order of the circuit court in sustaining defendants' motion to dismiss the petition of plaintiffs and in entering judgment for defendants is affirmed. It is so ordered. All concur.