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UTT v. OSTER

Kansas City Court of Appeals, Missouri
Jan 8, 1951
235 S.W.2d 577 (Mo. Ct. App. 1951)

Opinion

No. 21462.

January 8, 1951.

APPEAL FROM THE CIRCUIT COURT, RAY COUNTY, JAMES S. ROONEY, J.

Wilson D. Hill, Russell D. Farris, Richmond, Harry A. Hall, Kansas City, for appellants.

Nolan M. Chapman, Don Chapman, and Nolan M. Chapman, Jr., all of Chillicothe, for respondents.


On February 28, 1950, the circuit court of Ray County sustained defendants' motion to dismiss plaintiff's amended petition for a declaratory judgment and plaintiffs have sought to appeal.

The record shows that the original petition for a declaratory judgment was filed on September 21, 1949. On December 8, 1949, the trial court sustained defendants' motion to dismiss the original petition. The order of dismissal did not contain anything to indicate that the action was to continue; and it did not specify that the dismissal was without prejudice. No appeal was taken from this order. Thereafter, on December 17, 1949, the court made an order granting plaintiffs leave to file an amended petition.

In their amended petition, filed December 17, 1949, plaintiffs allege that they are resident taxpaying citizens of the common school districts hereinafter referred to, and bring this action on behalf of themselves and all others similarly situated who desire to join; that plaintiff Junior Utt is a director of Little Union School District No. 3; that plaintiff Rollin McElwee is a director of Rose Valley School District No. 2; that plaintiff Allen Wadley is a resident taxpayer of Tinney's Point School District No. 1; that all of said school districts are common school districts of Ray County, Missouri; and that the seven individuals named as defendants are "alleged" directors of Consolidated District C-4 of Caldwell County, Missouri. Consolidated District C-4 is also named as a defendant.

The amended petition further alleges that on July 25, 1949, "at an alleged special election, the said defendants were all named as elected to the Office of Directors of the Consolidated School District C-4 of Caldwell County, Missouri; that upon said date, prior thereto and up unto the present time, the said plaintiffs, Junior Utt and Rollin McElwee, have been the duly elected, qualified and acting members of the School Board of Education of their respective common school districts"; and that on "the date of said alleged election aforesaid, there was also purported to be submitted to the legal voters in the said Tinney's Grove, Little Union and Rose Valley Common School Districts, the proposition as to whether or not they, in connection with other Common School Districts, should consolidate with the City of Braymer, Caldwell County School District, forming a new consolidated district known as Consolidated District C-4 of Caldwell County, Missouri."

The amended petition further alleges that notice of the election was not given as required by law; that "by fraud and conspiracy of the defendants and those instrumental and representing said Braymer City District," the election was held at a time and place which made it impossible for plaintiffs and other citizens to vote against the proposed consolidation; that the election "was not held in accordance with the statutes of the State of Missouri and particularly Section 10495 and Section 10467 thereof"; that "the guarantee of secrecy of the ballots as set out and described and guaranteed in the Constitution of the State of Missouri, Section 25, Article I [Mo.R.S.A.], was not complied with." Plaintiffs then set forth in detail numerous matters which they allege rendered the election void, and they assert "that as a result of said actions upon the part of said defendants and those in authority and responsible for said alleged election aforesaid, considerable number of voters participating in said alleged election were disfranchised and deprived of their right to cast their ballot in secret, without influence or intimidation and that the results of said alleged election purporting to be a majority for consolidation was obtained by fraud and in a conspiracy and that the said alleged election is void and illegal as it does not truly represent the will of the people and should be set aside and held for naught by this Court."

The petition further alleges that "plaintiffs are directors of said common school districts aforesaid have property, and assets belonging to said respective common school districts and have the responsibilities of directing the operation of said schools * * *, and the property owners and residents of said common school districts have demanded that they continue with the operation of said common schools, school properties and school funds, and the defendants are claiming and demanding said funds and properties and the right to determine the education policy and program and to govern the school operations in said common school districts; that plaintiffs are unable to determine their rights and status and legal relations in connection with the premises, and they are uncertain and insecure with respect to the obligations, care and management of said school districts, school funds and properties and educational requirements of said districts, and the question of the right to levy and collect school taxes and the amount thereof and the persons lawfully required and authorized to expend and manage the same are unsettled and in great dispute between the parties hereto."

Plaintiffs "pray the Court in accordance with the provisions and authority given under the Missouri Revised Statutes Annotated, Section 1126 et seq., to determine the rights, duties and legal relations of the plaintiffs in the premises and to declare, among other things, that plaintiffs and the directors of the aforementioned common school districts have the right, duties and authority to conduct said common school in said districts and manage the funds and property of said district and operate said districts free and clear of any claim or interference by the defendants and to further determine and declare that said common school districts are not a part or subject to said Consolidated District C-4, together with such other and further relief as may be necessary and proper in the premises and to fully determine, adjudicate and settle the rights, status and legal relations of the plaintiffs in the matters and issues herein mentioned."

On December 22, 1949, defendants filed a motion to strike the amended petition from the files for the reason that the order sustaining defendants' motion to dismiss the original petition, entered of record on December 8, 1949, "was a final judgment dismissing this cause with prejudice." On the same day defendants filed a motion to dismiss the amended petition. This motion was based on the same grounds as defendants' motion to dismiss the original petition, namely: (1) that the petition failed to state a claim upon which relief could be granted; (2) that the court did not have jurisdiction of the subject matter of the action; (3) that the court did not have jurisdiction of Consolidated District C-4, of Caldwell County, Missouri, and its Board of Directors; (4) that the proceeding was a collateral attack on the corporate existence of Consolidated District C-4; (5) that the corporate existence of Consolidated District C-4 and the exercise by its Board of Directors of the corporate franchise could only be questioned by the State in a direct proceeding by an information in the nature of quo warranto; and (6) that the legality of the organization of Consolidated District C-4 and the election of its Board of Directors could only be challenged by the State in a direct proceeding by quo warranto. The trial court overruled the motion to strike and sustained the motion to dismiss.

In due time plaintiffs filed a motion for a new trial, which was overruled on February 28, 1950. On March 6, 1950, plaintiffs filed their notice of appeal which recited that the appeal was taken "from the order refusing plaintiffs a new trial." Thereafter, defendants field a motion to dismiss plaintiffs' appeal because the record shows that the trial court sustained defendants' motion to dismiss the original petition on December 8, 1949, and "said dismissal was with prejudice and a final judgment as no leave was asked or given at that time to file an amended petition; and no appeal was taken by appellants within ten days after the entry of the court's order sustaining the motion to dismiss and therefore this court has no jurisdiction of this appeal." This motion to dismiss was taken with the case, and the case is now under submission for such disposition as the facts may require.

Plaintiffs' brief does not contain a statement of the grounds on which the jurisdiction of this court is invoked, although Supreme Court Rule 1.08(a) provides that the brief for appellant shall contain such a statement. While the jurisdiction of this court is not challenged except on grounds stated in defendants' motion to dismiss the appeal, a question arises as to whether this court does in fact have appellate jurisdiction, or whether such jurisdiction is in the Supreme Court.

The Supreme Court has exclusive appellate jurisdiction in all cases involving "the title to any office under this state". Art. V, sec. 3, Const. of 1945, Mo.R.S.A.Const. In their amended petition plaintiffs attack the legality of the organization of Consolidated District C-4 and challenge the right of the individual defendants to hold the office and exercise the duties of directors of Consolidated District C-4. We think it is clear that the case involves title to the office of school director. The office of school director is an "office under this state," and since this proceeding involves title to such an office, exclusive appellate jurisdiction is in the Supreme Court. State ex inf. Rice ex rel. Allman v. Hawk, Mo. Sup., 228 S.W.2d 785; State ex inf. Kamp ex rel. Rodgers v. Pretended Consolidated School Dist. No. 1, 359 Mo. 639, 223 S.W.2d 484, en Banc; Bernhardt v. Long, 357 Mo. 427, 209 S.W.2d 112; State ex inf. Barrett ex rel. McCann v. Parrish, 307 Mo. 455, 270 S.W. 688; State ex inf. Thompson ex rel. Pugh v. Bright, 298 Mo. 335, 250 S.W. 599.

In view of the conclusion we have reached it is beyond our province to consider defendants' motion to dismiss the appeal, for we have no authority to dispose of this cause except to transfer it to the Supreme Court. Art. V. Sec. 11, Const. of 1945. Mo.R.S.A.Const; State ex inf. Barrett ex rel. McCann v. Parrish, supra; Starr v. Mitchell, Mo.App., 231 S.W.2d 299; State ex rel. Worsham v. Ellis, Mo.App., 11 S.W.2d 1095.

The case should be transferred to the Supreme Court.

SPERRY, C., concurs.


The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The case is transferred to the Supreme Court.

All concur.


Summaries of

UTT v. OSTER

Kansas City Court of Appeals, Missouri
Jan 8, 1951
235 S.W.2d 577 (Mo. Ct. App. 1951)
Case details for

UTT v. OSTER

Case Details

Full title:UTT ET AL. v. OSTER ET AL

Court:Kansas City Court of Appeals, Missouri

Date published: Jan 8, 1951

Citations

235 S.W.2d 577 (Mo. Ct. App. 1951)

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