STATE ex rel. HENTSCHEL v. COOK et al.

(No. 2074.)

(Springfield Court of Appeals.__Missouri. 6, 1918. Rehearing Denied March 14, 1918.)

9. MANDAMUS 142-ANCILLARY PROCEEDING-JURISDICTION.

The circuit court of the county in which a contractor's suit to recover the balance due on Feb. a contract with the school district was brought, after defendants had obtained a change of venue to another county, would have no right to issue mandamus to enforce payment of the judgment, as it had been shorn of all jurisdiction by the change of venue.

1. MANDAMUS 2-STATUTORY PROVISIONSAPPLICATION.

Rev. St. 1909, § 1864, appearing in the Code of Civil Procedure, providing that article 6 of the Code applies to mandamus, necessarily implies that other parts of the Code do not apply to mandamus, especially in view of sections 2546-2555, not in the Code, which specifically outline procedure for mandamus cases. 2. MANDAMUS

142-VENUE-APPLICATION

OF STATUTES. The Code of Civil Procedure (Rev. St. § 1751), requiring suits to be brought in the county where some of defendants reside does not apply to mandamus.

3. MANDAMUS 1-NATURE OF PROCEEDING. Under the statutes mandamus is regarded as a special proceeding.

4. VENUE 80-JURISDICTION-CHANGE OF VENUE.

10. MANDAMUS 168(4) STATE AID TO SCHOOLS-OWNERSHIP OF FUND-EVIDENCE.

In mandamus against the directors and treasurer of a school district to enforce payment of a judgment for the balance due on a contract, evidence for defendants held not to show that any sum had been sent to the school district by the state auditor under a misapprehension of the facts and a mistake of law, or any misapprehension or mistake on the part of the defendants in receiving and retaining the

amount.

11. JUDGMENT 619- MERGER - CONTRACT
ACTION-COLLATERAL ATTACK.

school building was the basis of a judgment for
the balance due thereon, its validity could not
be attacked on the ground that the contractor
had entered into the contract with knowledge
that the existence of the school corporation had
been attacked by quo warranto proceedings, as
the contract was merged in the judgment.
12. MANDAMUS 153-NEW PARTIES - DI-
RECTORS OF SCHOOL DISTRICTS-REPRESEN-
TATION OF STATE'S INTEREST.

Where a contract for the erection of a

Where a contractor's suit against the directors of a school district for a balance due was brought in the circuit court of Barry county, and the defendants residing in that county obtained a change of venue to the circuit court of Jasper county and submitted their defense, they gave that court full and complete jurisdiction The directors of a school district, the organto settle the matter, and with it, and as a nec-ization of which had been declared to have been essary part of it, every power essential to make invalid, did not occupy such relation to the that adjudication effectual, such as an ancillary state as would entitle them to represent the mandamus suit to compel payment of the state's interest in a fund which the district had amount adjudged due on the contract; it being received from the state as against a mandamus immaterial on the question of jurisdiction wheth- proceeding to compel the district treasurer to er the successors of the original directors, de- pay it over upon the judgment which a contracfendants in the mandamus proceeding, were di- tor had obtained against the district. rectors of the district when the change of venue 13. SCHOOLS AND SCHOOL DISTRICTS 24(2) was taken, as they would be bound by what the -CORPORATE EXISTENCE OF DISTRICT-ESdistrict did. TOPPEL TO DENY.

5. MANDAMUS 1-ENFORCEMENT OF JUDGMENT ANCILLARY PROCEEDING.

Mandamus is usually regarded as a proper remedy to enforce a judgment against a municipal or public corporation, and when so used is regarded as a proceeding ancillary to the main suit; the writ not being a new suit, but simply process essential to jurisdiction, the legal equivalent of an execution upon a judgment against an individual.

6. VENUE 80-CHANGE OF VENUE-EFFECT. In a suit against the directors of a school district for the balance due on a contract with the district, a change of venue obtained by defendants took with it the whole cause and every incident thereof, so that no jurisdiction whatever was left to the court where the suit was first brought.

7. MANDAMUS 142-CHANGE OF VENUE

ANCILLARY MANDAMUS PROCEEDING.

Where a mandamus proceeding against the directors and treasurer of a school district was merely a continuation of an original suit to recover the balance due upon a contract made with the district, and simply ancillary thereto, there could be no change of venue, especially in view of the statutory provision that there shall be but one change of venue by each party in the same cause.

8. MANDAMUS 153- PARTIES-INTERVEN

TION.

The directors of a school district which had received certain money from the state and used the interest accruing on it for school purposes for over two years were estopped to deny the corporate existence of the district in a mandamus proceeding to enforce payment of a contractor's judgment against the district.

Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Mandamus by the State of Missouri, on the relation of G. F. Hentschel, against A. J. Cook, John Pennel, and others. Motion to dismiss overruled, motion of defendant Pennel for a change of venue denied, judgment for relator, and defendants appeal. Affirmed.

but v. Potter (Sup.) 191 S. W. 57.
See, also, State ex inf. Burges ex rel. Mar-

T. D. Steele, of Monett, for appellants. I.
V. McPherson, of Aurora, and J. A. Potter, of
St. Louis, for respondent.

FARRINGTON, J. This is an appeal from an order granting a peremptory writ of mandamus ordering the issuance of a warrant by the appellants in the sum of $1,228.41, drawn on the building fund of what was known as consolidated school district No. 1, Barry coun

The provisions of the law authorizing persons having an interest in a controversy to be made parties thereto have no application to pro-ty, Mo., in favor of the relator, and ordering ceedings in mandamus. appellant Pennel, who appeared to be the

treasurer of said district, to pay the same on, if a judgment was rendered by the circuit presentation by the relator.

The Legislature in 1913 passed what is commonly called the Buford Act, under which consolidated school district No. 1, Barry county, Mo., purported to have been organized in June, 1913. In November, following, there was instituted in the Barry circuit court a quo warranto proceeding against the directors to oust them on the ground that the district had not been organized in compliance with the law. The then directors were L. D. Potter, M. G. Williams, J. P. Pennel, M. F. Black, J. A. Williams, and F. M. Reynolds. This quo warranto proceeding went to the circuit court of Greene county on change of venue, where on March 21, 1914, a judgment was entered, ousting said directors and holding that the district had never been legally organized. An appeal was taken to the Supreme Court which affirmed that judgment on December 20, 1916. State ex inf. Burges ex rel. Marbut v. Potter et al., 191 S. W. 57.

As

court of Jasper county in the contract case,
and if an execution was issued out of that
court on such judgment and was returned un-
satisfied, evidence of such facts was not in-
troduced in the mandamus proceeding.
the mandamus proceeding was tried by the
same court and judge that tried the contract
case, that judge doubtless took judicial no-
tice of the judgment, issuance of execution,
and return on file in his own court. More-
over, specific allegations covering these steps
were contained in the petition for the writ of
mandamus and were not and are not disput-
ed; hence would be treated as conceded.

As stated, on December 20, 1916, the Supreme Court affirmed the judgment of the circuit court of Greene county in the quo warranto proceeding, ousting the directors from office and declaring the district illegally organized. Ten days later Hentschel again appeared in the circuit court of Jasper county, this time armed with a petition for a writ of mandamus, setting up the main facts we have detailed. It is alleged in this petition, and not denied anywhere in the record, that Hentschel had demanded of the defendants as directors of the district that they cause a warrant in his favor to be issued on the treasury of the district payable out of the building fund, and that defendants had refused to comply. It is then alleged and not disputed that Hentschel has no other adequate remedy. The prayer was for the relief which (we stated in the first paragraph of this opinion) was given. The alternative writ was issued.

On the return date the defendants appeared only for the purpose of filing a motion to dismiss, setting up that it appears on the face of the petition and alternative writ as well as the return of the sheriff of Barry county, Mo., thereon, that the defendants are all citizens of and residents of Barry county, and that the circuit court of Jasper county had no jurisdiction over them. was overruled.

About a month after the quo warranto proceeding was instituted in the circuit court of Barry county, G. F. Hentschel entered into a contract with the purported directors named in the preceding paragraph, whereby for a consideration of $3,879.50 Hentschel was to construct a high school building. He was paid $2,847. The contract also called for some other items aggregating about $200, so that on April 27, 1914, there remained unpaid about $1,233. This not being paid, Hentschel filed suit to recover it in the circuit court of Barry county. It is alleged and not denied that the school directors took a change of venue in this contract suit to the circuit court of Jasper county where it was tried at the June term, 1915, judgment being rendered for Hentschel for $1,233, the case having been submitted on an agreed statement of facts. As the men who are appellants in this cour were elected as directors in 1914, they were before the circuit court of Jasper county in the contract case, as it was not tried until the June term, 1915. In the agreed statement of facts in that contract case it was set forth Defendants then filed their return, still that the district had received, under the pro- protesting the jurisdiction of the court over vision of section 7 of the Buford Act, from their persons. In the return the facts conthe state of Missouri the sum of $1,228.41, cerning the quo warranto proceeding are set being one-fourth of the total cost of the forth, and it is alleged that Hentschel enterbuilding and equipment erected and furnished into said contract a month after that proed by Hentschel under said contract, said sum ceeding was instituted with full knowledge being given the district by the state for the purpose of paying one-fourth the said cost, and that said district had said sum in its treasury in the building fund. The defendants in this contract case appealed to this court, where for sufficient reason the appeal was dismissed. Hentschel had an execution issued and delivered to the sheriff of Barry county, and it is alleged and not denied that said sheriff returned the same to the circuit court of Jasper county unsatisfied. It may be remarked at this place that the appellants in the mandamus case now at bar state that

This

of its pendency. As to the $1,228.41 paid by the state auditor in April, 1914, while the quo warranto proceeding was pending on appeal, the return sets forth that this sum was sent by the state auditor under a misappreheusion of the facts and without authority of law; that it is and has been held by Pennel (who was treasurer of the district) since the decision of the Supreme Court in the quo warranto case in trust for the state of Missouri to whom it justly belongs; that said sum is not and was not at the time of filing this mandamus suit in the hands of

defendant directors nor under their care or the depository of the district drawing 5 per control; that said fund cannot be made available for the purpose of paying a judgment on which the alternative writ is based; and that the state by and through its Attorney General has made a formal demand on such defendants for the return of this money to the state on the ground that the payment of the same to the district was made under a misconception of the facts and a mistake of law; wherefore it is prayed that the alternative writ be quashed.

immaterial on the question of jurisdiction | ties that the circuit court of Barry county, whether the present defendants in the man- where the defendents resided, would have had damus proceeding were the persons who were directors of the district at the time the change of venue was taken by the school district, for they would clearly be bound by what the school district did.

no right to issue the writ of mandamus to enforce payment of the judgment mentioned, as it had been shorn of all jurisdiction by the change of venue. Little Tarkio Drainage Dist. v. Richardson, 237 Mo. loc. cit. 65, 139 S. W. 576.

[5, 6] It is declared in 26 Cyc. 307, that mandamus is usually regarded as a proper [10] As to the plea of Pennel and the other remedy to enforce a judgment against a mu- defendants that the $1,228.41 was sent to the nicipal or public corporation, and it has been school district by the state auditor under a generally used for such purpose in this state misapprehension of the facts and a mistake as every lawyer knows. When so used it is of law, the only evidence concerning this is regarded as a mere ancillary proceeding to that of Pennel. He testified that "there were the main suit; when so employed the writ affidavits made out and sent to the state is not a new suit but simply process essential auditor before this money was sent, to the to jurisdiction-it is a means of enforcing effect that the district wasn't organized and collection of a judgment against a municipal he shouldn't pay this money;" that notice corporation, the legal equivalent of an exewas duly given the state authorities of the cution upon a judgment against an individ-pendency of the quo warranto proceeding at ual. Lafayette County v. Wonderly, 92 Fed. 313, 34 C. C. A. 360; Thompson v. Perris Irr. Dist. (C. C.) 116 Fed. 769; Howard v. Huron, 5 S. D. 539, 59 N. W. 833, 26 L. R. A. 493, 500; Kinney v. Eastern Trust & Banking Co., "Q. Since you were elected treasurer of that 123 Fed. loc. cit. 300, 59 C. C. A. 586; United district, tell the court if you, as treasurer, reStates ex rel. Masslich v. Saunders, 124 Fed.ceived any money from the state of Missouri for 124, 59 C. C. A. 394; Carter County v. the purpose of paying part of the costs of erectSchmalstig, 127 Fed. 126, 62 C. C. A. 78. 1, the high school in that district? A. Yes, The transfer of the main proceeding by change of venue took with it the whole cause, and every incident belonging thereto; not a shred of jurisdiction over the cause, or any of its incidents, was left in the circuit court of Barry county. Ex parte Haley, 99 Mo. loc. cit. 152, 12 S. W. 667; Hanna v. Buford,

194 S. W. 517; Little River Drainage Dist. v. Tomlinson, 245 Mo. loc. cit. 10-12, 149 S. W. 454. See, also, Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052.

[7] It is clear from what has been said that there is no merit in Pennel's contention that the court erred in refusing to grant him a change of venue. As the mandamus proceeding was only a continuation of the original suit, and simply ancillary thereto, there could be no change of venue. Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052; Little Tarkio Drainage Dist. v. Richardson, 237 Mo. 49, 139 S. W. 576; State ex rel. Cassidy v. Slavens, 75 Mo. 508; Cole v. Cole, 89 Mo. App. 228. Furthermore, the statute provides that there shall be but one change of venue by each party in the same cause, and as the school district had already had one change of venue it was not entitled to another in an ancillary proceeding in the same cause.

tacking the existence of the school district before the money was sent, and that it was held up four or five months before it was sent. Further:

sir."

As to the plea that the defendants had received notice and demand from the state authorities to hold the fund in trust for the state, the only evidence is Pennel's statement that he understood and had been advised that the state, through the Attorney General's of fice, had demanded the return of this money

to the state.

Upon the showing made on these affirmative matters, as to which the defendants had the burden of proof, there was no misapprehension or mistake by either themselves or by the state authorities. Since defendants received the fund and ordered it placed in the building fund of the district, and then, by order duly made, appropriated the interest accruing from it to help operate the five old districts, they are in a poor position to set up the fact that they should never have accepted it at all, having enjoyed the benefit of it for over two years.

The

[11] Any defenses the defendants could have made should have been made, and doubtless were, in the contract case. district at that time had been declared void by the circuit court of Greene county, and according to the agreed statement of facts the money from the state had been received. [8] As to the point that the state should It is idle at this date to talk about Hentschel have intervened, as put by the relator, or having entered into the contract with knowl that it should be given the opportunity to in- edge that the existence of the corporation tervene, as put by appellants, it is enough to had been attacked by quo warranto proceedsay that the provisions of the law authorizings. His contract was merged in the judg ing persons having an interest in a contro-ment, and its validity cannot now be at versy to be made parties thereto have no ap- tacked.

plication to proceedings in mandamus. State [12] The directors of this invalid school ex rel. Gordon v. Burkhardt, 59 Mo. 75. district did not occupy such a relation to the [9] It is clear from the foregoing authori-state as would entitle them to represent the

state's interest. However, from the discus- | sion in the opinion in State ex rel. Lashly v. Wurdeman, 183 Mo. App. loc. cit. 38, 39, 40, 166 S. W. 348, it appears that though the state could not intervene in this mandamus proceeding it might have, with the consent of the defendant directors, presented its claim in their return, but the state did not do so, and, as stated, the directors did not occupy such a relation to the state as that it could be said the state was represented in the return made. Nevertheless, the directors did undertake to represent the state's interests in the return they made, and had they made a semblance of a showing that the money was paid and received under a mistake of fact or law the circuit court might have at least withheld action for the time being in order to permit the state to assert its rights in some independent proceeding on the theory that courts will refuse mandamus where it is apparent that the interests of third parties, not before the court, are involved. State ex rel. Faires v. Buhler, 90 Mo. loc. cit. 570, 3 S. W. 68.

[13] Instead, they make a showing that the state auditor sent this money after receiving an affidavit containing all the facts; and then as to their allegation of a demand on them from the state to hold this money for the state the only evidence brought forward was that Pennel had heard that the state had made a demand. All this, in addition to the agreed statement of facts on which the judgment in the contract case had been rendered by the same judge who was hearing the mandamus proceeding, in which argeed statement of facts it was declared that this money had been received by the defendants for the express purpose of paying one-fourth the cost of the building and equipment to Hentschel. The directors had received this money into the treasury of the school district and had used the interest accruing on it for school purposes for over two years, so that in this mandamus proceeding they are clearly estopped to deny the corporate existence of the district. State ex rel. School District of Orrick v. Dorton, 145 Mo. loc. cit. 315, 46 S. W. 948. Whether the state has any remedy is not before us for decision. The judgment is affirmed.

pletes the sale to such purchaser, the agent
may recover his commission.
2. BROKERS 44-RIGHT TO COMPENSATION
-TERMINATING AGENCY.

and labor, but has not had a reasonable oppor-
Where an agent in good faith expends time
tunity to avail himself of the results, the princi-
pal cannot terminate the agency and use such
3. BROKERS
services without compensating the agent.
84(1)-COMPENSATION-Bur-

DEN OF PROOF.

In a broker's action for compensation, plaintiff has the burden of showing that defendant by plaintiff in negotiating a loan after terminatprincipal used information or services furnished ing plaintiff's agency.

4. BROKERS 86(1)-ACTION FOR COMPENSATION-SUFFICIENCY OF EVIDENCE.

loan negotiated by defendant principal after In a broker's action for commissions on a terminating the agency, evidence held not to sustain a verdict that defendant availed itself of information or services supplied by plaintiff.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Action by E. R. Johnson against the Columbia Mortgage & Trust Company. Judgment for plaintiff, and defendant appeals. Reversed.

Russell & Joslyn, of Charleston, for appellant.
A. B. Knipmeyer, of Memphis, Tenn., and
Haw & Brown, of Charleston, for respondent.

BRADLEY, brought suit against defendant (appellant) to J. Plaintiff (respondent) recover $1,687.50 alleged to be due plaintiff for services as a broker or agent in assisting in procuring and making a loan on certain farm lands in Pemiscot county. Below, upon trial' before the court and a jury, plaintiff had judgment for $400, and defendant appealed. The facts are

Plaintiff was a farm loan agent residing at substantially as follows: Charleston in Mississippi county, and defendant is a corporation of Memphis, Tenn. The defendant was the representative of the Prudential Insurance Company in making farm loans in Pemiscot and New Madrid counties. In February, 1915, arrangements were made whereby plaintiff became the representative of the defendant in procuring and forwarding to defendant farm loan applications in Pemiscot and New Madrid counties. Plaintiff was to receive a certain commission upon each loan he procured to be paid by the borrower. The Alfalfa Farming Company, owning a large body of farm lands near Hayti in Pem

STURGIS, P. J., and BRADLEY, J., con- iscot county, was desirous of procuring a loan

cur.

of $45,000, and plaintiff made a trip or two to Pemiscot county to see T. P. Russell, president of the Alfalfa Farming Company, en

JOHNSON v. COLUMBIA MORTGAGE & deavoring to procure this loan. On one of

TRUST CO. (No. 2075.)

(Springfield Court of Appeals. Missouri. Feb.
6, 1918. Rehearing Denied March 14, 1918.)
1. BROKERS 44-RIGHT TO COMMISSION-
TERMINATING AGENCY.

Where a real estate agent places his principal in touch with a purchaser and thereafter the principal terminates the agency and com

these trips he saw Mr. Russell, but no application was taken, as the rate made to Russell was not satisfactory to him. Plaintiff took up by correspondence with defendant the matter of this loan, and requested that this loan be made at the rate demanded by Mr. Russell. Defendant advised plaintiff under date of April 27th that its inspector, McKinney, would