author: HOWARD, Judge.

text:
    STATE ex rel. ST. JOSEPH LIGHT & POWER COMPANY, Relator, v. Darrell PARKS, Mayor of Easton, Missouri et al., Respondents.
    No. 24398.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.
    Application to Transfer Denied Jan. 9, 1967.

      Floyd M. Sprague, Charles S. Wilcox, Sprague, Wilcox & Houts, St. Joseph, for relator.
    Vernon N. Kneib, St. Joseph, for respondents.
   HOWARD, Judge.

Relator, St. Joseph Light and Power Company, brings mandamus against the mayor, all four aldermen and the city clerk of the City of Easton, Missouri, and against six individuals who acted as judges and clerks of a special election held in the City of Easton on August 11, 1964. By the writ of mandamus, relator seeks to change the official records of the city to show that a proposition to grant it a franchise was passed at such special election. The Circuit Court of Buchanan County, Missouri, by its final judgment limited the commands of its peremptory writ of mandamus to the city clerk, ordering her to record in the journal of the proceedings of the board of aldermen, the final passage of Ordinance 108 (granting a franchise to relator) on July 6, 1964, by a vote of three to one and declaring Ordinance 110, passed September 14, 1964 to be null and void and directing the city clerk to expunge it from the records and to enter in the journal of the proceedings of the board of aldermen that Ordinance 108 “carried by the affirmative vote of a majority of the qualified voters of the City of Easton voting at said special election of August 11, 1964.”

Before the events here in question transpired, the City of Easton was a 4th class city, which owned and operated its own electrical distribution system. It purchased electric energy at wholesale from the relator, and sold it at retail to the residents of Easton, through its distribution system. For a considerable period of time, the light company had desired to terminate this arrangement and secure a franchise from the city authorizing it to sell directly at retail to the residents of the city. In the early part of 1964, Ronald Beery, an area engineer for relator, made arrangements to appear before the city council and present the light company’s proposal. On two occasions he met with the city council and explained the proposal, which was that the company would purchase the city’s distribution system for $6,500.00, and the contract for the sale of electric energy to the city at wholesale, as embodied in Ordinance No. 60-1, passed September 22, 1960, would be cancelled and the company would be granted a twenty year franchise to operate the distribution system and sell electric energy at retail in the city.

The mayor and members of the board of aldermen testified that they understood that this was to be one proposal to be set forth in one ordinance; that the sale of the distribution system and the granting of the franchise were interdependant and that one would not be accomplished without the other. Mr. Beery appeared at a regular city council meeting on July 6, 1964, with two ordinances, which he had prepared and which are designated herein as Ordinance No. 108 and Ordinance No. 109. He explained that Ordinance 108, providing for the franchise, required approval of the voters by only a simple majority, whereas Ordinance No. 109, providing for the sale of the distribution system, required approval by two-thirds of the voters voting thereon, and, for this reason, it was necessary to use two ordinances rather than one.

There are conflicts between the testimony of Beery, on the one hand, and the city officials, on the other, as to exactly what happened at this meeting but in the view we take of the case, they need not be set out in detail. The ordinances were thoroughly discussed and it appeared that three of the aldermen, Heinrichs, Miller and Owens favored submitting the matter to a vote of the people and alderman Coffey was opposed. Such a motion was made and seconded. Beery testified there was a vote by a show of hands with three favorable votes and Coffey not voting. The city officials testified there was no vote, but, as was usual they all knew how everyone else stood and they did decide that they would have an election. At the close of the meeting the mayor signed both ordinances in the presence of all of the aider-men and gave them to Beery.

Mrs. Miller (the wife of Alderman Miller) was the city clerk. She was not present at this council meeting. It appears that until shortly before this meeting, the city of Easton had not kept any written journal of its proceedings as required by Section 79.150 (all statutory references are to RSMo 1959 and V.A.M.S.). Not long prior to this date, Mrs. Miller had become city clerk, and she had adopted the practice of writing up the minutes of the meetings in the journal from what her husband (Alderman Miller) told her transpired at the council meetings when he came home from such meetings. The council never read or approved the minutes of its previous meetings as shown in the journal.

After the council meeting of July 6, 1964, Mr. Beery accompanied Mr. Miller to his home, where he secured the signature of Mrs. Miller, the city clerk, on both ordinances. Beery dictated the minutes of the council meeting to Mrs. Miller, who wrote them up in the journal the next morning. Beery says the clerk requested assistance; Mrs. Miller says Beery insisted on dictating the minutes so they would be exactly right. Beery testified that the minutes, as they appeared in evidence from the journal, were as he dictated them, except they did not show the vote of the aldermen on the ordinances. Mrs. Miller insisted that the minutes appeared in the journal exactly as Beery dictated them; that he did not tell her how anyone voted. She testified that “they say” there was no call for a vote at the meeting and that is why she did not record a vote in the minutes.

On the basis of the foregoing evidence the trial court found that Ordinance 108 had been voted on and approved by the council by a vote of three to one, and made its alternative writ of mandamus peremptory commanding the city clerk to record in the journal of the board of aider-men of the city of Easton the final passage of such ordinance by a vote of “aye” by Aldermen Heinrichs, Owens and Miller, and a vote of “nay” by Alderman Coffey.

An election was held in the city of Eas-ton on August 11, 1964, pursuant to the call therefor contained in Ordinances No. 108 and No. 109. At this election there were two ballots, one for each ordinance. Voting was had in the two regular wards of the city, being the east and west wards. The west ward voted at the fire station, which was also the city hall. The judges and clerks of the election in this ward testified that when the polls closed, they left the poll book, tally sheet and all other election materials and the ballot box on the table in the fire station in the presence of and pursuant to the instructions of Alderman Coffey. The polling place for the east ward was in a private home. The mayor picked up the ballot box, poll book and tally sheet from this ward and took them to the fire station, where he placed them on the table with the material from the west ward.

It had been previously arranged that a meeting of the mayor and board of aider-men would take place at 7:30 P.M., August 11, 1964, immediately after the close of the polls, for the purpose of declaring the result of the election. Mr. Beery was present at this meeting. He testified that the mayor and all aldermen, except Heinrichs, were also present. Alderman Owens testified that he was not present at this meeting and the other city officials corroborated this.

Beery testified that at the meeting he asked the mayor for the result of the election. The mayor checked the ordinances to see which required a two-thirds majority and which only required a simple majority and then gave Beery the result of the election in both wards on both ordinances. Beery had theretofore prepared an ordinance declaring the result of the election, and he wrote the results of such election, as they were given to him by the mayor, on the proposed Ordinance 110. Beery testified that these results as to Ordinance 108 were: in the east ward, 25 yes and 15 no, in the west ward, 32 yes and 31 no, making a total vote on Ordinance 108 of 57 yes and 46 no. He also testified that the total vote as given to him by the mayor on Ordinance 109 was: yes 60, no 43. Beery testified that the mayor had these figures on a piece of paper or tablet, but that he could not see exactly what it was. Beery asked the mayor and board of aider-men to adopt his purported Ordinance 110 declaring the result of the election on Ordinance 108 to be that the ordinance granting the franchise to the company had passed. No one would make such a motion; the aldermen saying that since Alderman Heinrichs had made the original motion they would wait until he returned from vacation to make this motion. Beery stated that the mayor told him he would not sign any legal paper, but that he would write the results of the election in long hand on a piece of paper and sign it. This offer was declined by Beery. It was then agreed that the council would meet again on August 17, 1964, when Alderman Hein-richs would be back. On August 16, 1964, Beery received a telephone call from the mayor advising him not to come to the meeting on August 17, but if he had any further business with the city, he was to contact the city’s attorney. Beery testified that none of the election materials were at the fire station when he met with the city officials; that he did not see any ballots, tally sheets, poll books or ballot boxes on the table at the fire station during the meeting.

The mayor and Aldermen Miller and Coffey testified as to this meeting on the evening of August 11, 1964. The mayor testified that when he brought the election returns and supplies from the east ward, he looked at the tally sheet and both Ordinance 108 and 109 had carried in the east ward, by at least a simple majority, but that he did not know what the figures were. At the fire station he looked at the tally sheet of the west ward, but he did not know whether or not Ordinance 108 carried that ward. He stated: “I don’t know. I am not going to say.” He denied giving Beery the results of the election. He stated that he did not find out how the election came out and did not give any figures to Beery. He testified that he refused to sign the prepared ordinance which Beery had because he did not know what it was, but offered to get the election results and write them down on a piece of paper and sign it for Beery, but that Beery did not want this. Neither Alderman Miller nor Coffey looked at the tally sheets, nor learned, nor heard the results of the election as to either ordinance in either ward. They did not hear the mayor give the results of the election or any figures to Beery. Since they could not declare the result of the election, because of the absence of two aldermen, the meeting soon broke up and everyone left, leaving the ballot boxes, election returns and other election materials on the table in the fire house. No one locked the doors of the fire house or knew whether they were locked or not.

The ballot boxes, ballots, tally sheets, poll books and other election materials disappeared from the table in the fire station, and no one has seen them since, and all witnesses deny any knowledge of what happened to them or their present whereabouts.

The city clerk was not in town on election day. She returned home on Thursday, the 13th of August, 1964. She did not receive any ballot boxes, tally sheets, poll books or other election materials after the election. She was advised that they had disappeared from the fire station, and, since she did not know what else to do, on the 13th of August, 1964, she typed up and entered in the records of the city, a return of the election, showing no votes for either ordinance in either ward, wherein she recited, “because of sickness, the city clerk was not present on the night of the election, and now returning this Thursday morning, August 13, 1964, I find the ballots and poll books have been misplaced and I am unable to report other than the above.” No one made any search for the missing ballots and election returns and no law enforcement officers were contacted. The city officials contacted their attorney for advice.

About the 20th of August, 1964, the city officials decided to poll the electorate to determine how each person voted at the election of August 11, 1964. This poll was taken by the mayor and Aldermen Miller and Coffey going from door to door. When they had secured the signatures of 64 voters, who stated that they had voted against both Ordinance 108 and 109, they terminated the poll. Thereafter, on September 14, 1964, the city council passed Ordinance No. 110, wherein it is recited, “ . whereas it appears from the returns of said election and canvassing of the voters of said City that the said voters of said City voted against Ordinances Nos. 108 and 109, the vote on said propositions being as attached hereto, to-wit: 64 votes “no” out of total eligible voters of 110.” On this basis Ordinance No. 110 declared that Ordinances Nos. 108 and 109 “did not carry and are not adopted.”

On the basis of the foregoing evidence, the trial court declared said Ordinance 110 to be null and void and of no legal effect and granted its peremptory writ of mandamus commanding the city clerk “to expunge from the minutes of the journal of the proceedings of the defendant Board of Aider-men the purported passage and approval on September 14, 1964 of purported Ordinance No. 110, and to enter into said minutes of the journal of the proceedings of said Board of Aldermen that the approval and ratification of Ordinance No. 108 carried by the affirmative vote of a majority of the qualified voters of the City of Easton voting at said special election of August 11, 1964.”

Respondents have duly appealed to this court. They set forth many points for review, but in the view we take of this case, only one issue requires extended consideration ; that is whether or not the trial court was authorized, under the law, to issue its writ of mandamus to require the records of the city to reflect that Ordinance 108 was adopted by vote of the people, when there was, in fact, no return made of the election thereon; and if the court has such power, whether or not the evidence herein is sufficient to support its judgment.

. Section 79.030 provides that “all city elections shall be held under the provisions of Chapter 111, RSMo 1949.” It also provides that “all duties specified in the state election laws to be performed by the county clerk shall be performed by the city clerk”, and “[t]he manner of making returns of such elections shall be prescribed by ordinance.” Pursuant to this last provision, the City of Easton had, before this controversy arose, adopted its Ordinance No. 107, which is in evidence, which provides for election returns in city elections. It reads in pertinent part, “the city clerk shall within two days after the closing of the polls in any city election, deliver to the board of aldermen a fair abstract of the votes given in their respective wards, by wards, for mayor, aldermen, city clerk and on any other office or issue submitted to vote.” The state election laws set out the duties of the judges and clerks of election. Among other things it is provided in Section 111.670; “After the examination of the ballots shall be completed, the whole number of votes for each person shall be enumerated under the inspection of the judges, and set down as directed in the form of the poll books, and be publicly proclaimed to the persons present.” The testimony of the judges and clerks indicates that they did, in each ward, set down the result of the election “as directed in the form of the poll books”. The poll books in this instance were merely sheets of paper prepared on the typewriter by the city clerk. The poll books were signed and attested by the judges and clerks of the election, and a total was entered of the votes therein as required by Section 111.-680. Section 111.690 requires the judges of the election to transmit one of the poll books, by a clerk, or by registered mail, to the clerk of the county court, (city clerk in this city election) within two days after the election. The statute then provides, “the other poll book shall be retained in the possession of the judges of election open to the inspection of all persons.” Only one poll book was provided for this election for each ward, and there was, therefore, no duplicate poll book for the judges of the election to keep and it appears that they did not, in fact, keep any record of the vote. The election officials did not transmit the poll books to the city clerk as required by statute, but instead entrusted the poll books, together with the other election materials, to the mayor in the case of the east ward and to Alderman Coffey in case of the west ward. They never reached the city clerk. Not having any returns, she could not “deliver to the Board of Aldermen a fair abstract of the votes given” in the election.

Counsel have cited no case wherein an even vaguely similar set of facts have been considered. Our extensive research has revealed none. The situation here presented might well be described as a comedy of errors, except that it is not funny. It would be more accurate to describe it as either tragic or pathetic — perhaps both. We are dealing here with the matter of the return and canvass of the results of an election by the people. We are not dealing with the minutes of a public meeting, such as those of a city council or a school board, thus the holdings in such cases as State ex rel. Lovell v. Tinsley, 241 Mo.App. 690, 236 S.W.2d 24, and State ex rel. Marcum v. Sappington, Mo.App., 261 S.W.2d 385, are of little help. Even though the results of this city election are to be declared by the city council, we can not let this fact obscure the issue here presented which is, as stated, the return and canvass of the results of a popular election. This is not an attempt at an election contest. Consequently such cases as State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153; Arkansas-Missouri Power Corporation v. City of Potosi, 355 Mo. 356, 196 S.W.2d 152; State ex rel. Sisson v. Felker, Mo.App., 336 S.W.2d 419, and Felker v. City of Sikeston, Mo.App., 334 S.W.2d 754, cited by respondents, are not in point. We must determine what, if anything, can be done to declare the results of an election, when the returns thereof have disappeared and are no longer in existence, and, therefore, the canvassing officials are unable to canvass the returns and there is no canvass on which a declaration of the results of an election can be based.

Our courts have repeatedly held that the function of canvassing the returns of the election results as submitted by the judges and clerks of the election in the various voting districts, is solely ministerial in character. The canvassers can not go behind the election returns as submitted by the judges and clerks. They can not determine the legality of any particular vote, or the legality of the entire vote in any district, and can not reconcile conflicts between the tallies of the vote and the total vote as certified by the election officials, without specific statutory authority. This was early decided by our Supreme Court in an opinion by Judge Napton, in Mayo v. Freeland, 10 Mo. 629. It has been adhered to down through the years and was reiterated as late as 1941 by our Supreme Court en banc in State ex rel. Donnell v. Osburn, 347 Mo. 469, 147 S.W.2d 1065, 136 A.L.R. 667, in an opinion by Judge Douglas. See also State ex rel. Attorney General v. Steers, 44 Mo. 223; O’Laughlin v. City of Kirkwood, 107 Mo.App. 302, 81 S.W. 512, and State ex inf. Anderson ex rel. Boothe v. Moss, 187 Mo.App. 151, 172 S.W. 1180.

In State ex rel. Metcalf v. Garesche, 65 Mo. 480, the court determined that the return of the election judges and clerks had been improperly changed after such return was delivered to the city clerk. The court determined what the original return was and by mandamus required the canvassers to correctly canvass the return as originally made, before such improper change. No case has been found where the canvassers were either permitted or required to do anything other than cast up the vote from the totals as returned by the election officials of the various voting districts. In State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153, our Supreme Court en banc took the unusual step of handing down a per curiam opinion explaining the reasons for its refusal to grant a preliminary writ of mandamus. In this case a candidate for the Republican nomination for United States senator sought the writ to compel the secretary of state to certify the election returns without including the returns from the counties of Jackson, Buchanan and Pemiscot, because the returns from such counties were so arbitrarily and fraudulently false as to be a nullity. The court pointed out that by statute the secretary of state is required to certify the results of a primary election as they appear from the state canvass. He can not go behind the canvass and the court will not, by mandamus, require the secretary of state to do something which he is not authorized to do by law.

Applying the foregoing cases to the situation at bar, it is apparent that the duties of the city clerk in making the canvass of the election here at issue, were purely ministerial in nature; that she could not go behind the totals certified by the judges and clerks in each of the two wards, and that she could not, under the law, take testimony, or base her canvass on anything other than the returns from each of the wards. Likewise, the board of aldermen could not declare the results of the election on the basis of anything other than the “fair abstract of the votes given” as furnished by the clerk. As is pointed out in 29 C.J.S. Elections § 221, page 632: “An election is not deemed to be complete until the result is determined and declared.”

In the present case, the disappearance of the ballots, poll books and tally sheets leaves a void which the city clerk and the board of aldermen could not fill. The clerk could do nothing other than make the canvass as she did; because of the disappearance of the election materials, including the poll books and the returns of the election judges and clerks, she could only make a canvass of no vote. Under these circumstances the board of aldermen was powerless to declare that Ordinance 108 passed.

We are, therefore, of the opinion that the trial court was without power to issue its writ of mandamus requiring the city clerk to enter a declaration of the result of the election by the city council in the minutes of the proceedings of the board of aldermen. The law did not authorize the city clerk to take such action in this situation, and, as pointed out in State ex rel. Frank v. Becker, supra, the court will not command the ministerial officer to do what the law does not authorize him to do. This is not a situation where the city clerk made an erroneous report or failed to report what actually transpired, rather, this is a situation where a condition precedent to the city clerk’s action, receipt of the election returns from the judges and clerks of the election, never occurred. Likewise, delivery of a fair abstract of the vote, by the city clerk to the board of aldermen, was necessary before the aldermen could declare the results of the election. Can the clerk be required to record a declaration which never, in fact, took place? We think not.

However, our decision does not rest on this basis alone If we should assume that the trial court did have power to issue such writ, we must next determine whether the evidence in the instant case is sufficient to support its judgment. We conclude that it is not. The only evidence as to the results of the election is the testimony of the witness Beery. He did not testify as of his own personal knowledge. In fact, he specifically denied any such knowledge. He merely testified that the mayor gave him the figures, as being the result of the election, and he testified to the figures as given by the mayor and as he recorded them. He stated that the mayor had these figures on a piece of paper, but he did not know what that paper was. Thus the testimony of Beery is obviously hearsay, and even though properly admitted, the credibility of Beery in no way vouches for the reliability of the election results to which he testified. If we are to rely on this evidence, we must rely on the credibility of the mayor. There is no showing from whence he secured the figures which were on the piece of paper from which he read. The mayor denied ever having placed any figures on a piece of paper and denies ever having given any figures to Beery. Likewise, the other witnesses present, i. e., Aldermen Miller and Coffey, deny having heard the mayor give any figures to Beery. The mayor testified that although he looked at the election returns, he never learned what the result of the election was and he did not know it. Both aldermen, likewise, testified that they never learned the result of the election and did not know it now. Thus the testimony of the witness Beery was hearsay, several times compounded, and even if we are to believe that the mayor made the statements attributed to him by Beery, we have no way of knowing the source from which such statements were derived. The mayor denied personal knowledge. We do not know whether he read the figures, and if so, from where he read the figures, or whether he read them correctly. We do not know if some one else told him those figures, and, if so, who that person was, whether they told him the correct figures, or whether the mayor heard the figures correctly and relayed them correctly. Thus, we can not rely on the personal knowledge of the mayor, and his statements, if made, were likewise hearsay. They have no probative value. There is a serious question as to the credibility of the testimony of the mayor and the two aldermen. It is obvious that the trial judge did not believe it and he was, no doubt, justified in his conclusion. However, this disbelief of the denials of the mayor and the aldermen can not convert their testimony into affirmative substantive evidence which could support a judgment. Relator contends that respondents did not deny its allegations concerning the mayor’s statements as to the results of the election and, therefore, they stand admitted. This contention is correct; however, the allegations in paragraph 9 of relator’s answer to the first amended return of Mayor Parks, et al, are cast in almost exactly the same language as Beery’s testimony. It is merely alleged that the mayor read the results of the election to Beery from a piece of paper the mayor held in his hand. This has no more substance and is subject to the same infirmities as Beery’s testimony. It is not sufficient to support the judgment.

The judges and clerks of the election for the east ward made return to the preliminary writ that the result of the election on Ordinance 108 was 25 yes and 15 no. This return was received in evidence by the trial court and the judges and clerks did not testify to these matters. Even if we accept these figures as reliable, they only cover one of the two wards. With the exception of Arch Pool, who was one of the election judges for the west ward, the other election officials for that ward did not know the result of the election in that ward when they testified, although they probably did know shortly after the election.

Arch Pool testified that he did not know the exact vote for and against Ordinance 108 as cast in the west ward at the election. He did not remember whether more votes were for or against Ordinance 108. He did not remember if the result was close. After being reminded of a previous telephone conversation with the attorney for the relator, Mr. Pool testified that, at the time of the telephone conversation, he thought there was only one vote difference between the vote for and against Ordinance 108. He did not recall at the time that he testified whether that was one vote for or one vote against, but gave the following testimony: “Q. It is still your opinion that there was one vote difference, one way or the other? A. That’s right.”

This self contradictory testimony is without probative force and in no way tends to corroborate Beery’s hearsay testimony as to the result of the election. We therefore conclude that the evidence is insufficient to support any findings by the trial court as to the result of the election on Ordinance 108, or to support the judgment of the trial court in granting its peremptory writ of mandamus, requiring the city clerk to enter in the minutes of the journal of the proceedings of the board of aldermen a declaration that Ordinance 108 carried by the affirmative vote of a majority of the qualified voters of the City of Easton voting at the special election on August 11, 1964.

Now, what as to the other two commands of the peremptory writ of mandamus? As to Ordinance 110, which purported to be based upon the poll of the electorate taken by the mayor and two aldermen, after the election was over, such procedure is unauthorized by law and void. However, the result of the ordinance is to declare that Ordinances 108 and 109 failed to pass at the election. This is the true result because, in the absence of the election returns, it can not be found that such ordinances received a majority of the votes at the election, and, therefore, nothing can be done except declare that the ordinances failed to pass. Therefore, the issuance of a peremptory writ of mandamus in this instance would serve no useful purposes. If the present Ordinance 110 was stricken from the records nothing could be done except adopt a new ordinance showing the same result, but for a different reason. Such a futile gesture will not be required and the writ of mandamus should not be used for this purpose.

As to the passage of Ordinance 108 by the city council on July 6, 1964, it is apparent from the evidence that three out of the four aldermen were in favor of the ordinance; they, in fact, agreed thereto, although no formal vote by ayes and nays was taken. Again, it is our thought that the issuance of a peremptory writ of mandamus to coerce the showing of an affirmative vote on this ordinance would be a useless and empty gesture. Everyone has, throughout these events, considered that Ordinance 108 was, in fact, passed; the election called by such ordinance was, in fact, held. Such election was a nullity because it was impossible to make return thereof, when the election materials disappeared, but this can not be remedied by the writ of mandamus. Ordinance 108 has served its purpose and has expended its force. No further action can be taken pursuant thereto regardless of whether or not the vote passing such ordinance is formally entered on the minutes of the proceedings of the board of aider-men. Therefore, the writ constitutes only an empty gesture and should not go.

For the foregoing reasons the judgment of the trial court is reversed and the peremptory writ of mandamus heretofore issued is quashed.

BLAIR, J., concurs.

CROSS, P. J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    LEE HOLDING COMPANY, a corporation, Respondent, v. WENTZVILLE OIL COMPANY, Inc., a corporation, Appellant.
    No. 24472.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.
    Application to Transfer Denied Jan. 9, 1967.

      Young & Briegel, Union, for appellant.
    John O. Bond, Jefferson City, for respondent.
   HOWARD, Judge.

This is a suit for rent due under a filling station lease. Respondent secured a default judgment for $4,400.00 in the Circuit Court of Cole County. Appellant contends that the trial court did not have jurisdiction of its person because of improper venue. Both parties are corporations and appellant was the sole defendant below. We shall refer to the parties as they appeared below.

Plaintiff’s petition alleges that both parties are Missouri corporations; that plaintiff leased a filling station in Warren County, Missouri, to the defendant at a rent of $400.00 per month and that defendant had failed to pay rent for eleven months, during which it had possession of the leased premises. Plaintiff also alleged “defendant was obligated to make said payments to plaintiff at its address in Cole County, Missouri” and that “this claim for relief occurred [accrued] to plaintiff in Cole County, Missouri”. A copy of the lease was attached to and made a part of the petition.

On the 31st day after service of summons, defendant filed motion to dismiss, alleging that it was a corporation domiciled in St. Charles County and had never conducted any business or maintained any office or place of business in Cole County, Missouri, and that the cause of action did not accrue in Cole County, Missouri. Defendant further alleged service of summons on the corporation in St. Charles County, Missouri, by the St. Charles County sheriff. No verification of this motion is shown in the transcript. Plaintiff’s brief asserts that the motion was not verified and defendant’s brief does not controvert this assertion.

The trial court sustained a motion to strike defendant’s motion to dismiss because the motion to dismiss was filed out of time, i. e. on the 31st day after service of summons. Defendant then filed what is denominated “Motion for Additional Time to File Answer”. However, the motion requests the court “to grant additional time to file a motion to dismiss”, which motion had been filed one day late. The court’s docket entry recites, “Motion to strike granted. Motion for additional time to file answer filed and granted. Motion of defendant to dismiss refiled.” Thereafter the motion to dismiss was taken up and the transcript shows that the court “having considered said motion and the briefs of counsel” overruled the motion. Defendant refused to plead further and plaintiff after adducing evidence secured its default judgment.

Defendant on this appeal contends that the cause of action did not accrue on Cole County and that, therefore, venue of this suit was not in Cole County and consequently the trial court did not have jurisdiction of the person of the defendant; it further contends that it has not by its pleadings waived questions of venue and jurisdiction over the person and has not entered its general appearance. Plaintiff controverts both of these contentions. We will consider the matter of waiver first, because if we find waiver we need not consider the other issues.

After its original motion to dismiss had been stricken, defendant filed its motion for additional time to plead as above set out. Plaintiff contends that this pleading constitutes a general entry of appearance and had the effect of waiving any question as to venue and jurisdiction of the person. In reliance on Oliver v. Scott, Mo.App., 208 S.W.2d 468, it asserts that the trial court was correct in striking defendant’s first motion to dismiss. The cited case concerned a matter wherein the defendant had repeatedly filed pleadings, not only out of time, but without serving the same upon opposing counsel. The court there quite rightly held that the trial court properly struck such pleadings. In that case no question of jurisdiction was raised by such stricken pleadings and, on the authorities we shall discuss hereinafter, it does not govern the issues in the case at bar.

Many of the older cases, such as Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92, Lieffring v. Birt, Mo.App., 154 S.W.2d 597, and State ex rel. Tighe v. Brown, 224 Mo.App. 844, 23 S.W.2d 1092, did hold that any pleading which asked the court to exercise its jurisdiction and make an order beneficial to the pleader for any purpose other than denying its own jurisdiction, constituted a general appearance and waived any question of venue or jurisdiction of the person. However, the pronouncements of these cases have been substantially modified or changed by later decisions. Thus in State ex rel. Boll v. Weinstein, 365 Mo. 1179, en banc, 295 S.W.2d 62, suit was filed in St. Louis County on a cause of action accruing in Jefferson County against a corporation as sole defendant, which had its only place of business in Jefferson County, and which did not have any place of business or did not maintain an office in St. Louis County, and which had not transacted any business in St. Louis County. Service was had in St. Louis County on the president of the defendant corporation who happened to be found in St. Louis County on his own individual business. Defendant did not file any pleading in the St. Louis County circuit court until more than thirty days had elapsed after service. It then appeared specially and attacked the jurisdiction of the court because of improper venue and lack of jurisdiction over the person of defendant. When this motion was overruled, it applied for prohibition. The court pointed out that the defendant did not waive any question of venue or jurisdiction by staying out of court and failing to plead for more than the prescribed thirty days; that not having waived anything prior to filing his motion to dismiss on special appearance, he did not waive the matter at that time; that the trial court did not secure jurisdiction of the person of the defendant because of the improper venue. The court then directed the trial court to dismiss the suit for lack of jurisdiction. The court specifically refrained from ruling on the question of whether or not defendant did waive the question of jurisdiction by securing leave to plead out of time, because no such leave had in fact been requested or granted and the decision of such issue was not required.

Applying the doctrine of this case to the situation in the case at bar, when defendant filed its motion to dismiss on the 31st day, for lack of jurisdiction over the person based upon improper venue, it had not waived the question of lack of jurisdiction over its person; such was then a live issue, ripe for determination by the court, and the court should have considered the same on its merits. It is implicit in the decision in the Weinstein case that the question of jurisdiction of the person can be raised for the first time by a pleading out of time, or, conversely, that the party does not waive the question of jurisdiction of the person by failure to assert the same by motion within the time prescribed by Civil Rule 55.37 V.A.M.R.

Thus the defendant properly raised the question of jurisdiction of the person because of improper venue. Did it waive such question by seeking leave to plead by its subsequent motion? We must note that although the motion is captioned, “Motion for Additional Time to File Answer”, the motion itself asks only additional time to file motion to dismiss, and specifically refers to its previous motion, which was filed one day late. This motion for leave was filed on the day the previous motion was stricken; it was granted on the same day and still on that same day defendant refiled its motion to dismiss attacking the jurisdiction of the court.

In the recent case of Greenwood v. Schnake, Mo., 396 S.W.2d 723 (decided after the judgment in the case at bar was rendered), defendant secured two orders for additional time to plead. In each application defendant recited that he was “reserving the right to assert all defenses accruing to him that might have been pleaded on the original return date”. Defendant then filed a motion attacking jurisdiction of the person together with a motion for more definite statement. He filed other pleadings in which he either attacked the jurisdiction of the court or recited that he reserved that question. Thereafter he made discovery and secured a continuance without attacking the jurisdiction of the court and without mentioning his question of lack of jurisdiction. Under prior cases such as those relied upon by plaintiff in the case at bar, this action would clearly have constituted a general entry of appearance and a waiver of the question of jurisdiction. The court pointed out that because the defendant had properly raised the question of jurisdiction of the person, he did not waive such issue by proceeding with the case when the court ruled against him on the jurisdictional issue. The court said; “Having once hoisted the flag at the beginning of the journey a litigant over whose person a court lacks jurisdiction need not continuously wave the flag at every way station along the route.” It would appear that this would apply specifically to the case at bar, and on the basis of the decision in this case, together with the holdings in Elrod v. Lafayette Elevator Company, Mo.App., 379 S.W.2d 852 and State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852, we hold that defendant did not enter its appearance or waive the question of jurisdiction over the person when it requested leave to refile its motion attacking such jurisdiction, which motion had theretofore, and on the same day been stricken (and improperly stricken) because filed one day late.

We note that the opinion in Greenwood v. Schnake, supra, (an opinion of Division One of our Supreme Court) as dicta indicates that the question of jurisdiction of the person might be waived if not filed within the time to plead as provided in Civil Rule 55.37. This dicta would seem to be contrary to the holding in State ex rel. Boll v. Weinstein, and we are bound by this pronouncement of our Supreme Court en banc.

We must therefore consider the issues of jurisdiction of the person on its merits. Section 508.040 (all statutory references are to RSMo 1959 and V.A.M.S.) provides for the venue of suits against corporations as the sole defendant. This statute reads, in pertinent part, as follows: “Suits against corporations shall be commenced either in the county where the cause of action accrued * * ⅜ or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” Did this cause of action accrue in Cole County, Missouri? Plaintiff maintains that it did. Its position seems to be that since defendant’s motion to dismiss was not verified and since no evidence was heard when the court considered and overruled the motion to dismiss, that we are bound by the assertions in the petition that “defendant was obligated to make said payments to plaintiff at its address in Cole County, Missouri,” and that “this claim for relief occurred [accrued] to plaintiff in Cole County, Missouri.” The transcript does not contain any evidence adduced at the hearing on the motion; the order of court overruling the motion makes no mention of evidence. It only recites that the court considered “the motion and the briefs of counsel.” Thus we must resort to the pleadings to determine this issue and we must agree with plaintiff that the allegations in defendant’s unverified motion do not prove themselves. However, we are not necessarily bound by the conclusions pleaded in the petition. The lease on which this cause of action was based was attached to and made a part of the petition. This lease shows that there was no agreement as to where the rental payments were to be made. It is entirely silent on this subject. It does not support plaintiff’s assertion that the rental payments were to be made to plaintiff at its address in Cole County.

Plaintiff contends that we should reach this conclusion because the general law is that in the absence of special agreement between parties, the law will presume that money is to be paid at the residence of the creditor. The authorities cited in support of this assertion by plaintiff so state, but they also state that such general rule does not apply to rent. See 32 Am.Jur., Landlord and Tenant, Section 467, page 383, where it is said: “In the absence of any stipulation in the lease, or in an agreement auxiliary thereto, fixing the place at which the rent shall be paid, the general rule is that it is payable upon the leased premises.” 40 Am.Jur., Payment, Section 17, page 723 makes reference to the same exception. See also 52 C.J.S. Landlord and Tenant § 543, page 352, where the same general law is set out. Thus, under the general law the rental payments in question in the case at bar were not to be made to plaintiff at its address in Cole County, but rather were to be made by defendant at the rental premises in Warren County. Furthermore, in the case of Moherstadt v. Harry Newman Inc., Motor Cars, 204 Mo.App. 619, 217 S.W. 591, the court, while recognizing the general rule that in the absence of a specific agreement, the law would imply that money due was to be paid at the residence of the creditor, held that this rule would not fix the venue of a cause of action for money due under this venue statute. It found that where the cause of action was based on failure to pay money due under a contract (not a negotiable instrument or similar commercial paper) such cause of action did not accrue at the residence of a creditor, but at the place of business of the debtor.

Under the above authorities and since the lease did not provide any place for the payment of the rent, it would appear that payment was to be made at the leased premises, not at plaintiff’s address in Cole County, Missouri, and that plaintiff’s cause of action for the payment of money did not accrue in Cole County, Missouri. Thus, venue of this cause of action can not be found to be in Cole County, Missouri, on the grounds that the cause of action accrued therein.

We must then determine whether or not venue is in Cole County, Missouri, because defendant had or usually kept an office or agent for the transaction of its usual and customary business in Cole County. Defendant does not- mention this issue in his brief; however, we can not convict the trial court of error without making this determination. Plaintiff’s brief refers to this question only in passing, its position being that there is no evidence in the record from which we can determine lack of venue. The record is entirely devoid of evidence on this point. The petition contains no allegation concerning this matter and there is nothing in the lease from which it can be inferred that defendant either did or did not keep an office or agent in Cole County for the transaction of its business. Defendant’s unverified motion alleges that defendant did not have any such office or agent and did not conduct any business in Cole County. The allegations of such an unverified motion do not prove themselves and we can not take such allegations as proof herein. No affidavits were filed in support of this motion. No evidence was adduced by defendant in support of its motion to dismiss. In such situation the moving defendant had the burden of establishing the allegations of his motion. It not only failed to carry this burden but made no effort to do so. See Randall v. St. Albans Farms, Inc., Mo., 345 S.W.2d 220, Bealmear v. Beeson, Mo.App., 263 S.W.2d 472 and Locasio v. Ford Motor Co., 240 Mo.App. 269, 203 S.W.2d 518. We must therefore presume that the trial court, being a court of general jurisdiction, acted correctly. We can not, on the record before us, find that the court erred in overruling the motion to dismiss. See Darby v. Weber Implement Co., 203 Mo.App. 200, 208 S.W. 116, and cases cited therein.

The summons and return of service thereof was not included in the transcript on appeal, although it was available to the trial court. Pursuant to our order under Civil Rule 82.12 V.A.M.R., the clerk of the trial court has sent up certified copies of these documents and they are now, by our order, incorporated in and considered as part of the transcript. They show that the summons in the case was served on defendant in St. Charles County, Missouri, by the sheriff thereof by delivery to “Fred Eisen-both, who was at the time, Secretary of Wentzville Oil Company, Inc., a corporation, the within named defendant.” We are mindful of the holding in State ex rel. Macon Creamery Co. v. Mix, 222 Mo.App. 426, 7 S.W.2d 290, Cf. Rubber Tire Supply Co. v. American Utilities Co., Mo.App., 279 S.W. 751 and Daniels v. Yarhola Pipe Line Co., Mo.App., 206 S.W. 600, but the statutes governing service of process on corporations, discussed in these three cases and relied on in the Macon Creamery case, have since been changed by our legislature when it enacted the new civil code in 1943. No comparable provisions are found today in either our statutes or our Civil Rules. See Sections 506.150 and 506.-170 and Civil Rules 54.06 and 54.09. Consequently, the above cases do not govern our decision.

In this situation, we can not find that the trial court erred, and not having erred, its judgment should be and is affirmed.

COOK, PHIL H., Special Judge, concurs.

CROSS, P. J., and BLAIR, J., not participating.


author: MAUGHMER, Commissioner.

text:
    Irene ROBINSON, Appellant, v. Vincent J. CLEMENTS and Betty I. Clements, Respondents.
    No. 24492.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.
    Application to Transfer Denied Jan. 9, 1967.

      Beals & Feutz, Dwight Beals, Richard E. Feutz, Camdenton, for appellant.
    Arthur H. Stoup, Kansas City, for respondents.
   MAUGHMER, Commissioner.

The plaintiff’s default money judgment against defendants was, upon motion, set aside. Plaintiff then moved for a rehearing or reinstatement of the judgment, which the trial court denied, whereupon plaintiff appealed.

The plaintiff, Irene Robinson, is a widow, who is now 89 years of age. The defendants, Vincent J. and Betty I. Clements, are husband and wife, and Betty is the plaintiff’s granddaughter. The petition is in four counts: it is alleged in count 1 that plaintiff, in November, 1959, loaned defendants $1400, which had never been repaid ; in count 2 that in April, 1960, plaintiff owned a Ford Fairlane automobile, which was reasonably worth $1,095, that she assigned title thereto to defendants, who traded same for another automobile with title in defendants’ names; in count 3 that in December, 1962, plaintiff had a savings account totaling $3,786.63, which she placed in a joint account with the defendant Betty I. Clements, who converted the whole sum to cash and failed to account for $307.00 thereof; in count 4 it is asserted that defendants have cashed and retained the proceeds from four of plaintiffs social security checks in the amount of $40 each.

We shall set forth the exact dates upon which various pertinent events occurred:

April 14, 1965, plaintiff filed her petition.
April 22, 1965, personal service was had on both defendants.
May 25, 1965, when they were already three days in default, defendants filed application for 30 days additional time in which to plead. Defendants were granted an extension until June 23, 1965.
July 1, 1965, defendants had filed no pleading. Plaintiff took a default judgment on each count of her petition, which judgment, including interest, totaled $3,234.00.

All of the above described proceedings took place in Division No. 11, Jackson County Circuit Court, and before Judge J. Donald Murphy. Shortly thereafter Judge "Murphy went on vacation and the following proceedings were in Division No. 6, before Judge Keith P. Bondurant:

August 13, 1965, defendants filed their motion to set aside the default judgment and alleged:
(1) that they had a meritorious defense; (2) defendants filed a photostatic copy of a money order in the amount of $2,473.93, payable to plain-409 S.W.2d — 14V2 tiff and a receipt signed by plaintiff, acknowledging payment in full of all indebtedness due her from defendants; (3) that in taking 'the default judgment plaintiff failed to comply with Rule 16, Rules of Jackson County Circuit Court, which provides that “Each trial division shall set its trial docket not less than four weeks in advance of the trial date” and give notice in a “legal publication”; (4) that fraud was committed in that plaintiff’s attorney stated or at least suggested to the court that defendants were not represented by counsel; plaintiff’s counsel was directed by the court and agreed to notify defendants of the default judgment, but did not do so until more than 30 days had passed. The contents of this motion were sworn to by defendants’ attorney as being true and correct according to his best knowledge and belief.

On August 18, 1965, the whole matter was before the court with counsel for both sides present. The parties agreed that neither plaintiff nor her attorney ever notified defendants or their attorney prior to August 5, 1965, that a default judgment had been taken. Mr. Beals, attorney for plaintiff, said that Judge Murphy, when the default was entered, said: “Mr. Beals, you are to notify the defendants. You do it.” And that he (Mr. Beals) replied: “Okay”. Mr. Beals discounts the effect of his noncompliance insofar as plaintiff’s judgment is concerned by saying that it all transpired after entry of the judgment and therefore had nothing to do with its procurement or its present validity.

The defendant, Betty I. Clements, testified that she had used plaintiff’s money to pay plaintiff’s hospital and doctor bills. She also produced a receipt signed by plaintiff, acknowledging receipt in full for all monies due her.

Arthur Stoup, attorney for defendants, also testified. He was employed in the matter but except for a motion asking for additional time to plead, filed no pleading and really did nothing until 43 days after the default. He, too, had been on vacation part of the time. He said Mr. Beals told him that Judge Murphy told Beals to notify defendants of the default, but that Mr. Beals did not do so until more than 30 days had passed. There was no further explanation, or excuse or justification suggested ás to why Mr. Stoup, defendants’ attorney, had failed to file a timely pleading in the matter.

On September 1, 1965, the court (Judge Bondurant) by the following order, set aside the default judgment:

“ORDER
“This matter came on for hearing on defendants’ Motion To Set Aside Default Judgment and Notice of hearing on such Motion. The Court having heard the evidence and having received, read and considered defendants’ First Amended Motion To Set Aside Default Judgment, Suggestions in Support of Defendants’ Motion to Set Aside Default Judgment, Plaintiff’s Suggestions in Opposition to Defendants’ Motion to Set Aside Default Judgment, Affidavit of the plaintiff and being fully advised in the premises it is hereby ordered that said Motion to Set Aside Default Judgment is sustained and the default judgment heretofore taken in favor of plaintiff and against defendants on July 1, 1965 is hereby set aside and for naught held and defendants are given leave to file responsive pleadings within ten days of the date hereof”.

Plaintiff’s next pleading styled “Motion for Rehearing or to Reinstate the Judgment” was filed on September 8, 1965. Both sides filed suggestions, briefs and arguments. On November 5, 1965, the motion was overruled. On November 12, 1965, plaintiff filed her Notice of Appeal.

In her brief plaintiff says: “The sole question involved is: Did the Motion contain verified statements sufficient to set aside the judgment and if it did, did the facts support the statements?”.

Defendants say first that the appeal should be dismissed because there can be no appeal from an order setting aside a default judgment, since in such a situation there is no “finál judgment” which the statute requires as the basis for an appeal.

The right of appeal did not exist in actions at law under the common law and has been conferred solely by statute. Tucker v. Miller, 363 Mo. 820, 253 S.W.2d 821. Section 512.020, V.A.M.S. states “Who may appeal”. We quote in part:

“Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, * * * or from any final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case”. (Italics added).

Rule 82.05, V.A.M.R. declares when judgments become final:

“* * * a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed.
⅝ ⅝ ‡ ⅜ ⅝ ⅜
“In the event a motion for a new trial is filed, the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is passed on at an earlier date, then at the date of disposition of said motion.”

Appeals involving default judgments arise under different factual situations respecting the pleadings and the times of entry. One classification is where the trial court refuses to set aside the default. In such cases the judgment is clearly final. The losing trial court litigant has exhausted his possible remedies in that forum. Beyond question that matter is then ripe for appeal. Carter v. Levy, Mo.App., 217 S.W. 549, 550.

A trial court has rather complete control over judgments for 30 days after entry. Section 510.370, V.A.M.S. provides as follows :

“Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.”

Rule 75.01, V.A.M.R. states in part:

“The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.”

Under these provisions a judgment does not become final until thirty days have passed after its entry. Numerous decisions are to the effect that where a default judgment is set aside by the trial court at any time within thirty days after entry, no appeal will lie as there is no final judgment upon which an appeal could be predicated. Harper v. Harper, Mo.App., 379 S.W.2d 889; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, and Owens v. Owens, Mo.App., 280 S.W.2d 867.

In Bussiere’s Adm’r v. Sayman, 257 Mo. 303, 165 S.W. 796, the Supreme Court ruled that when a default judgment was set aside there had been no “final judgment” and the matter was not ripe for appeal. The opinion then not only indicated, but stated, that appellant might wait until there was an actual trial and a “final judgment” and then take his appeal, at which time he would be entitled to have an appellate court pass upon the trial court’s earlier action in setting aside his default judgment. Judge Cave of this court in Owens v. Owens, 280 S.W.2d 867, 868, ruled that an appeal from an order setting aside a default, made within thirty days after its entry, was premature, but indicated that the validity of the order setting aside the default could be tested if and when there was an appeal from a really final judgment. Exactly such a situation and development actually occurred as revealed by the opinions of the St. Louis Court of Appeals (Farrell v. DeClue et al., 365 S.W.2d 68 and Farrell v. DeClue et al., 382 S.W.2d 462). In the first case plaintiff’s default judgment for $9,000 was set aside. Plaintiff appealed but the appellate court ruled that the appeal was premature. Thereafter there was a trial on the merits and plaintiff secured a judgment for only $3,000 ($6,000 less than the amount of the default judgment). Again plaintiff appealed and on appeal it was ruled (a) plaintiff was “aggrieved” when his default was set aside and he lost $6,000 in judgment, and (b) the court erred and abused its discretion in setting aside such default judgment. The original judgment for $9,000 was ordered reinstated.

In the case before us the default judgment was set aside more than thirty days after its entry and responsive to defendants’ motion which was also filed more than thirty days after entry of judgment. The motion was not filed within the time prescribed for the filing of a motion for new trial and the court order setting aside the default judgment was made long after expiration of the thirty day period during which it had control of the judgment.

In 28 Missouri Law Review: Procedure—setting aside final judgments in Missouri, page 281, we find this conclusion stated:

“As a general rule, a court in this state lacks authority to disturb its final judgments after lapse of the thirty day period following rendition, except as authorized by statute or by certain common law procedures.”

The Law Review article then lists six possible methods under which the court might set aside a default after thirty days. The first is where the record is clearly erroneous. This the court can correct by a nunc pro tunc entry. On this procedure the article states:

* * * although the courts have lost jurisdiction of a case after the lapse of thirty days, they have not lost jurisdiction over their records.”

The second procedure is a petition for review which may be presented within three years, but it applies where there was constructive service only. The third method is a motion to set aside for irregularity. It is recognized and limited by Rule 74.32 V.A.M.R. which reads:

“Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the rendition thereof.”

To the same effect is Section 511.250 V.A.M.S. None of these three is applicable to our case. Then there is the writ of error coram nobis; separate suit in equity to set aside; and motion to set aside for fraud. These last three seem to overlap to some extent.

The Supreme Court (Bussiere’s Adm’r v. Sayman, supra, 165 S.W. p. 797) recognized the variance in our Missouri decisions on this question and said:

“Neither is there any doubt that the rulings of the appellate courts of this state are almost irreconcilable, and that the whole question is now, by many diverse rulings, in almost inextricable confusion.”

That statement which was made in 1914 is possibly still true. However, in January, 1952, our Supreme Court en Banc considered the question in Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 135. The Court said:

“A default judgment was entered against respondent on October 5, 1949, setting aside the foreclosure sale and trustee’s deed. * * *. On December 7, 1949, more than thirty days after the entry thereof, respondent filed a motion to vacate and set aside the default judgment. After hearing, the motion was sustained; the judgment was set aside; and the case was ordered reinstated on the docket. After an unavailing motion for a new trial, appellant has taken this appeal from the order or judgment setting aside the judgment in favor of appellant. An appeal lies from such an order or judgment.” (Italics ours).

In Watkins Co. v. Hubbard et al., Mo.App., 343 S.W.2d 189, the motion to set aside the default was filed nine days after its entry but the order setting it aside was made months later. The motion to set aside was bottomed upon fraud in procurement, extraneous to the merits., (Plaintiff’s attorney had promised to dismiss the action). This court accepted the appeal, treated the matter as a separate action in equity and held that such equitable action for relief might be commenced either by separate suit or by motion in the case itself. To the same effect see In re Jackson’s Will, Mo.App., 291 S.W.2d 214, 220, 222.

Although the Casper opinion does not specifically attach significance to the fact that the default was set aside more than thirty days after entry, it does carefully point out such fact several times. It should be noted, too, that the opinion does not distinguish the various cases on this subject but just squarely, declares that an appeal lies. Because in our case the default was set aside more than thirty days after entry, and because the opinion in Casper v. Lee, supra, is controlling authority, and further because of the views expressed by this court in Watkins v. Hubbard, supra, we hold that the appeal will lie at this time in the case before us.

We now consider the appeal on its merits. Was the motion sufficient and did the facts justify the trial court in setting aside the default? It is not necessary that the motion be given any particular name — coram nobis, suit in equity or motion to set aside for fraud. It is the contents of the motion which are controlling. Briefly summarized, it sought to have the default judgment set aside for three reasons: (1) defendants had a meritorious defense, which allegation was supported by the money order payable to plaintiff and her receipt in full for all moneys due her; (2) noncompliance with Jackson County Circuit Court Rule 16. In our opinion this rule requires the court to publish notice of trial settings. This does not include defaults and is a requirement resting upon the court and, not upon counsel; (3) that plaintiff’s counsel at the time of the default falsely and fraudulently stated or suggested to the court that defendants were not represented by counsel when he knew otherwise, and that the court at the time the default was entered, directed plaintiff’s attorney to inform defendants of the default and plaintiff’s attorney agreed to do so, but failed to give any such notice until more than thirty days had passed.

It seems to us that defendants have, prima facie at least, established that they have a probable defense on the merits. It is, of course, the policy of courts to have cases determined on the merits where possible. Watkins Co. v. Hubbard, supra. Rule 83.24 V.A.M.R. tells us: “These rules shall be liberally construed to promote justice, to minimize the number of cases disposed of on procedural questions and to facilitate and increase the disposition of cases on their merits.”

It is our opinion, too, that plaintiff’s counsel overreached defendants when, as conceded, he represented that defendants were without counsel, and when he agreed and promised the court to notify defendants of the default but did not do so until after the judgment had become final. We are inclined to view these occurrences as constituting sufficient cause for setting aside the default and in deference to and in accordance with principles of equity requiring that the controversy be heard on the merits. The Supreme Court of the United States in United States v. Throckmorton, 98 U.S. 61, 65, 25 L.Ed. 93, recognized that in addition to the purely statutory roads of review there was this additional and equitable avenue open to a losing litigant in certain instances. The court said:

“But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to the suit, there was in fact no adversary trial or decision of the issue in the case.”

This court in Watkins Co. v. Hubbard, supra, 343 S.W.2d 1. c. 192, commented to the same effect:

“It is a familiar rule that equity will relieve against a judgment for extrinsic fraud, accident and mistake.” Black on Judgments, Sec. 368 and other cases cited therein.

We believe the trial court’s action should be affirmed even though no satisfactory excuse or justification has been offered which would exculpate defendants’ counsel from his neglect in filing a timely pleading. We are loath to punish defendants for counsel’s dereliction even though in many instances such negligence of the attorney is chargeable to the client.

The judgment or action of the trial court in setting aside the default judgment is affirmed and the cause is remanded for trial on the merits.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


text:
    AMERICAN CANCER SOCIETY, MISSOURI DIVISION, INC., Respondent, v. DAMON RUNYON MEMORIAL FUND FOR CANCER RESEARCH, INC., Appellant.
    No. 24507.
    Kansas City, Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.
    Application to Transfer Denied Jan. 9, 1967.
    William O. Sawyers, Jr., St. Joseph, for appellant.
    Miner & Martin, Richard E. Martin, St. Joseph, for respondent.
   HOWARD, Judge.

This case originated with the filing of a petition in the Probate Court of Buchanan County, Missouri, for construction of the last will and testament of Emma Pauline Wolff, deceased. The petition presented four questions as to the meaning of the will. We are concerned with only one of these. This is a paragraph in Item Third of the will, making a bequest “to the Damon Runyon Memorial Fund for Cancer Research, St. Joseph, Missouri Chapter, I give (10) Ten Thousand ($10,000) Dollars in cash”. It appears that there is no St. Joseph Chapter of the Damon Runyon Memorial Fund. The American Cancer Society, Missouri Division, Inc. and the Damon Runyon Memorial Fund for Cancer Research, Inc., intervened, both claiming to be entitled to this $10,000.00 bequest. The probate court found that the Damon Runyon Fund was entitled to the bequest. The American Cancer Society appealed to the Circuit Court of Buchanan County, which found that the Buchanan County Chapter of the American Cancer Society, Missouri Division, Inc. was entitled to the bequest. The Damon Runyon Fund has duly appealed to this court.

The Damon Runyon Fund does not operate through local chapters. It has only one office, and that is located at 730 Fifth Avenue, New York, 19, New York. On the other hand, The American Cancer Society is organized on the local level and does have a Buchanan County chapter, which has been active for many years in Buchanan County and St. Joseph, Missouri. The Damon Runyon Fund contends that the words “St. Joseph, Missouri, Chapter” should be treated as surplusage and as the equivalent of a mere erroneous address, and that the bequest should go to the Damon Runyon Memorial Fund for Cancer Research, Inc., which is admittedly located only in New York City. The American Cancer Society contends that it was testatrix’s intention to benefit the only local organization active in the field of cancer research, and that is the local chapter of the American Cancer Society, which should be given this cash bequest.

Mr. and Mrs. Wolff had been long time residents of St. Joseph, Missouri. They executed what has been described as reciprocal wills, that is, each spouse left all of his or her property to the other, with provision for various bequests in the event that such other predeceased the testator. The list of specific bequests was identical in each will. It so happened that Mrs. Wolff survived her husband, thus all of his property passed under his will to Mrs. Wolff, and on her death, the specific bequests became effective. Her will made four bequests of specific personal property and distributed over $250,000.00 in cash by specific bequests, to one sister, four nieces, one great nephew, seven individuals who do not appear to be related to her, and twenty organizations. Of these twenty organizations (excluding the bequest under consideration) all were either local organizations or local branches of national organizations, except four: The Shriners Hospital for Crippled Children at St. Louis, Missouri; The Masonic Home of St. Louis, Missouri; The School of the Ozarks, Point Lookout, Missouri; and The Boys Club of America, 381 4th Avenue, New York, 16, New York. As to this last organization, the bequest provided “If this organization has a St. Joseph, Missouri, branch, the above bequest is intended for the St. Joseph Chapter”.

The residuary clause, after payment of expenses, taxes etc. provided for equal distribution among testatrix’s sister, her four nieces, and one great nephew, or such of them as were alive at the time of such distribution.

Trial below was to the court, a jury having been waived, and on this appeal, we must determine which of the claimants is entitled to receive this $10,-000.00 bequest, or whether such bequest fails for lack of an entity capable of taking. The parties are in agreement that in our construction of this provision of the will, we must be governed by the intention of the testatrix, and that such intention is to be gathered from the will as a whole, supported by extrinsic evidence if the provisions of the will are ambiguous. It is apparent from what has been said that because there is no St. Joseph chapter of the Damon Runyon Memorial Fund for Cancer Research, Inc., we are faced with a latent ambiguity and extrinsic evidence was properly considered by the court below. The situation is strikingly similar to that presented in the case of Evans v. Volunteers of America, Mo., 280 S.W.2d 1, where the court said: “It is obvious that our task upon this appeal is to determine which of the organizations named in said items is, in fact, the devisee and legatee therein. In construing wills, the paramount rule, to which all others must yield, is that the intention of the testator governs unless it conflicts with some positive rule of law, and that intention is to be gathered from the will as a whole. Section 468.620 RSMo 1949, V.A.M.S.; Gannett v. Shepley, 351 Mo. 286, 172 S.W.2d 857. In the event the will is ambiguous, extrinsic evidence is admissible as to the circumstances surrounding the testator when the will was executed.”

Appellant claims that the trial court erred in admitting evidence of certain declarations of testatrix and her husband that they intended to or had made a bequest to the local cancer society. It relies on the general rule that such declarations are not admissible on the question of the construction to be given to the language in the will. However, appellant overlooks the fact that we are here faced with the problem of resolving a latent ambiguity as to the identity of the beneficiary intended in this bequest. Such declarations by the testatrix are admissible on the question of identity, as was specifically pointed out in Evans v. Volunteers of America, supra, where the court said: “The general rule heretofore set out, however, does not appear to prohibit testimony by the scrivener when such is necessary in order to resolve a latent ambiguity as to the identity of a beneficiary. Such a situation arises when a description of a legatee (as in the instant case) will apply, with more or less certainty, to two or more persons or corporations. A review of many cases has led us to the definite conclusion that, under the law of Missouri and many other states, evidence of a testator’s instructions to the scrivener (under circumstances such as exist in the instant case) is admissible to assist in establishing the intention of the testator as to the identity of a legatee under a description which is equivocal and latently ambiguous. Willard v. Darrah, 168 Mo. 660, 68 S.W. 1023; Hockensmith v. Slusher, 26 Mo. 237; Bond v. Riley, 317 Mo. 594, 296 S.W. 401; In re Miller’s Estate, 26 Pa.Super. 443; Day v. Webler, 93 Conn. 308, 105 A. 618; Covert v. Sebern, 73 Iowa 564, 35 N.W. 636; Bradley v. Rees, 113 Ill. 327, 55 Am.Rep. 422.” We therefore rule that the evidence below was admissible for whatever it may be worth. .

At the trial below the Damon Runyon Memorial Fund did not offer any evidence. The American Cancer Society offered evidence to show that it had a local organization, which was at one time known as the Buchanan County Chapter of the American Cancer Society. This was later changed to the Buchanan County Unit of the American Cancer Society. There was no St. Joseph organization, only the Buchanan County organization. This local unit was not a corporate entity, but was the local office of the American Cancer Society, Missouri Division, Inc., which was the corporate entity. The local unit engaged in a program of supplying bandages and other materials to local cancer patients, arranging for transportation to the state cancer hospital, maintaining a “loan closet” of equipment for loan to cancer patients, educational programs for showing moving pic- . tures and conducting educational activities with local groups and in raising funds. These funds were not distributed by the local unit but went to the Missouri division. From one-fourth to one-third of the funds raised were used for research and the local office made statistical reports to the state and national office for use in statistical research on cancer. The evidence showed that this organization was often referred to by names other than its full and complete title; it was more often called variously just “The Cancer Society” or “The Buchanan County Cancer Society” or “The St. Joseph Cancer Society”. There was no evidence that it was ever referred to as the Damon Runyon Memorial Cancer Fund. There was no other organization, locally, active in the cancer field.

The bandages which the Buchanan County unit of the American Cancer Society furnished to cancer patients were made by volunteer workers and much of this volunteer work was done through the various chapters of the Eastern Star. The testatrix, Mrs. Wolff, through her Eastern Star Chapter, participated in this volunteer work on bandages for the American Cancer Society. Mr. and Mrs. Wolff were friendly with Mr. and Mrs. Ellershaw. The Ellershaws often visited in the Wolff home and they regularly took Mrs. Wolff to Eastern Star meetings and functions. The testatrix’s will, and that of her husband, were both executed May 3, 1957. At that time Mr. and Mrs. Ellershaw were active in fund raising for the American Cancer Society. Mrs. Ellershaw continued active in such fund raising and Mr. Ellershaw, in later years, assumed an executive position with the Buchanan County unit of the American Cancer Society, being chairman of the Board of Directors at the time he testified. The Ellershaws often discussed their activities for the American Cancer Society with the Wolffs. Both Mr. and Mrs. Wolff repeatedly complimented and praised the Ellershaws for their good work in connection with the local unit of the American Cancer Society. Mrs. Wolff contributed money to the fund raising campaigns of the American Cancer Society by contributions to fund raisers who called at her door. The Ellershaws did not solicit funds in the area of the Wolff home and therefore did not receive money from Mrs. Wolff. Evidence was adduced that Mr. and Mrs. Wolff stated to the Ellershaws on two or more occasions that they (the Wolffs) were remembering or had remembered “your cancer society” in our will and that they were “going to see that your society gets money”. The witnesses were not able to pinpoint the date of these statements, but from all the evidence we conclude that these statements were all made after the execution of the wills. The testimony of the Ellershaws was not precise. Taken as a whole, it is not clear whether the statements by either Mr. or Mrs. Wolff were statements that they had in fact made a bequest to the American Cancer Society, or whether they were statements that they intended to make provision for the society in the future. In these circumstances, this evidence carries very little weight.

From the evidence it appears that testatrix and her husband were both familiar with the work of the American Cancer Society, through its local unit. They were described as being competent and businesslike people, especially Mr. Wolff, and it is inconceivable that they did not know the name of the American Cancer Society or that they would confuse the American Cancer Society with the Damon Runyon Memorial Fund. The evidence was that no one had ever heard either Mr. or Mrs. Wolff refer to the Damon Runyon Memorial Fund. The only evidence concerning the Damon Runyon Memorial Fund in the St. Joseph area was that witnesses had read about it in the newspaper and had heard fund solicitations for the organization on radio and TV, primarily by Walter Winchell.

From this evidence, we can only conclude that testatrix and her husband knew of the American Cancer Society and the work of its local unit and that they did not intend to make a bequest to such society by the provision in the will giving $10,000.00 in cash to the Damon Runyon Memorial Fund. It is inconceivable that they meant the one when they said the other, when the two names have nothing in common and could not readily be confused. We therefore hold that the trial court erred when it found that the American Cancer Society was entitled to the bequest.

Since this was a trial to the court without a jury, we are now faced with the proper judgment to be entered in this case. Can we hold that the Damon Runyon Memorial Fund is entitled to the bequest which was made to “The Damon Runyon Memorial Fund for Cancer Research, St. Joseph, Missouri Chapter”? We have concluded that we can not. The pattern established by the specific bequests to twenty different organizations shows that testatrix and her husband desired primarily to benefit local charitable organizations. Of the four exceptions to this pattern, two were to Masonic institutions. Mr. Wolff was active in the Masons and Mrs. Wolff in the Eastern Star. One bequest was to the School of the Ozarks at Point Lookout, Missouri, and the other was to the Boys Clubs of America. In this last instance it appears that the testatrix and her husband were not certain whether or not the Boys Club had a local organization, and they, therefore, carefully provided that it should go to the particular organization in New York, unless there was a local organization, in which case, “the above bequest is intended for the St. Joseph, Missouri Chapter.” Such provision was not included in the bequest to the Damon Runyon Memorial Fund. It is thus apparent to us that testatrix, and her husband, believed that there was a local chapter of the Damon Runyon Memorial Fund, and that testatrix intended to make this gift to the local chapter and not to the national organization of the Damon Runyon Memorial Fund in New York City. Since there is no chapter or organization capable of taking, as described in this bequest, we are forced to the conclusion that the bequest must fail. We are convinced that if we were to award this gift to the Damon Runyon Memorial Fund in New York City, we would be going contrary to the intent of the testatrix, and that such conclusion could only be supported by speculation and conjecture.

We note that under this holding this bequest will become part of the residuary estate, which under the will, will be divided among such of the relatives of testatrix as are alive at the time of distribution.

The judgment of the trial court is therefore reversed and the cause remanded with direction to enter a judgment in accordance with this opinion.

All concur.


author: FRANK W. HAYES, Special Judge.

text:
    JACKSON COUNTY PUBLIC WATER SUPPLY DISTRICT NO. 1, Appellant, v. ONG AIRCRAFT CORPORATION, a Corporation, City of Kansas City, Missouri, Ilus W. Davis, Successor to H. Roe Bartle, Mayor of Kansas City, Missouri, Hugh G. Carr, Director of Water, Kansas City, Missouri, and Earl Brosnahan, Respondents.
    No. 24337.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.

      Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 6, 1966.
    Application to Transfer Denied Jan. 9, 1967.

      Charles W. Hess, of Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, Henry Andrae, Hendren & Andrae, Jefferson City, John L. Gaylord, Neil F. Cline, Kansas City, for respondent Ong Aircraft Corp.
    Herbert C. Hoffman, City Counselor, Ned Bahr, Asst. City Counselor, Kansas City, for respondents City of Kansas City, Ilus W. Davis, Successor to H. Roe Bartle, Mayor of Kansas City, Missouri and Hugh G. Carr, Director of Water, Kansas City, Missouri.
    Edward F. Aylward, Kansas City, for Earl Brosnahan Co.
   FRANK W. HAYES, Special Judge.

The appellant, Jackson County Public Water Supply District No. 1, was organized under Chapter 247 (all statutory references are to RSMo 1959 and V.A.M.S., unless otherwise indicated), for the purpose of furnishing water to users within its district. The respondents are the City of Kansas City, Missouri, Ilus W. Davis, Mayor, successor to H. Roe Bartle, Ong Aircraft Corporation, which is a developer of the subdivisions, Hugh Carr, Director of Water of Kansas City, Missouri, and Earl Brosna-han, a private contractor, building the subdivision for the Ong Aircraft Corporation.

The appellant brought this suit in the Circuit Court of Jackson County, Missouri, to enjoin the respondents from constructing and using water supply lines in a subdivision being developed in Jackson County, Missouri, known as “Crossgates” which was located within the territorial boundaries of said appellant. The appellant claims that it has the exclusive right to supply water to that portion of the new subdivision which is within the boundaries of the water supply district. The trial court made findings of fact and conclusions of law and entered judgment denying a permanent injunction against the respondents. The appellant appealed to the Supreme Court of Missouri, which court transferred the cause to this court on the ground that it did not have jurisdiction because the record did not affirmatively disclose that the amount in dispute exceeded $15,-000.00.

Many motions were filed by both parties at various steps of this proceeding, but as none of them were dispositive of any issue involved in this appeal, they will not be discussed herein. The evidence offered by each party covered a wide range but only such evidence as we believe is relevant and material will be referred to herein. The appellant will be referred to as the District and respondent, Kansas City, Missouri, as the City.

The evidence discloses that by reason of the extension of the city limits of Kansas City, Missouri, large portions of the District’s original service area have been detached and turned over to the City. After each detachment, the boundaries of the District were re-established to conform to the City’s city limit boundary. The most recent detachment occurred pursuant to contract of July 7, 1961, between the District and the City, and the decree of the Circuit Court of Jackson County, Missouri, validated such action as provided by law.

The final annexation and detachment established a boundary line generally along 119th Street which is the southern boundary of the City and the northern limits of the City of Grandview. Respondent Ong Aircraft Corporation is the owner of an eighty acre tract of land that lies approximately one half on each side of the 119th Street dividing line. This tract, known as Crossgates, has been subdivided into 372 building lots of which 195 are north of the boundary line in the City and 177 are south of the line in the City of Grandview, Missouri, and within the District. The 195 lots in the City are not involved in this controversy. The 177 lots in the City of Grand-view are.

On October 18, 1962, a contract was entered into between the Ong Corporation and the City by the terms of which the City agreed to supply water to the 177 lots located in Grandview through the mains to be provided by Ong Corporation. Work was begun under the contract and on December 6, 1962, the District filed its injunction suit against respondents claiming the exclusive right to supply water to the Grandview portion of the subdivision by virtue of the contract with the City dated July 7, 1961, and pursuant to the provisions of Chapter 247, under which the District was organized.

It is contended by the District that the Court erred in holding that the agreement of July 7, 1961, did not create areas of mutual exclusiveness for the serving of water. The agreement of July 7, 1961, was approved, under the provisions of Section 247.160, by the Circuit Court of Jackson County, Missouri, in Cause No. 83533. The District has failed to point out and this court has failed to find any express provision in said agreement which gives to the District any exclusive right to furnish water within the area of Cross-gates subdivision lying within the City of Grandview. The decree of the Circuit Court dated July 28, 1961, approving the agreement does not mention any such express agreement nor give any such exclusive right to the District. The petition of the District for injunctive relief is not based on any such express agreement. The court finds that there is no express agreement between the District and the City giving the District exclusive right to sell water in the District.

There being no express written contract giving the District exclusive right to furnish and sell water in the District, can such contract be implied? The court is of the opinion that it cannot. Section 432.070 provides as follows:

“No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.”

Section 432.070, above, is construed in State ex rel. City of Mansfield, Missouri et al., v. Crain, Judge of the Circuit Court of Wright County, Missouri, Mo.App., 301 S.W.2d 415, the court saying at 1. c. 419:

“The injunction petition also contains a general allegation that it relied upon the assurances and agreement * * * of the City of Mansfield that said city would not compete with Se-Ma-No during the term of the franchise and contracts. It is not alleged or contended in the brief that such assurance or agreement was in writing or by ordinance. Such a general allegation fails to state any ground for injunctive relief. Section 432.070 R.S.Mo.1949, V.A.M.S., requires that contracts made with a city must be in writing and duly executed as therein provided. It has been repeatedly held that the requirements of this section are mandatoryj not directory, and that a contract not so made is void.” (Citations omitted).

On the question of implied agreement, the same court, 1. c. 418, has the following to say: “ * * * The fundamental basis of the cause of action stated in the injunction petition is to the effect that the City of Mansfield, by the execution of the franchise now owned by Se-Ma-No, and by executing the street lighting and pumping station contracts, impliedly agreed not to compete with the company in the transmission and distribution of electrical energy within said city for the term and duration of said franchise and contracts. The injunction petition does not allege, nor do the attached exhibits show, any express agreement that the franchise is exclusive, or that the city expressly agreed not to compete with Se-Ma-No. Under such circumstances, there can be no implied limitation upon the right of the City of Mansfield to construct and operate a power plant. Cases specifically so holding are Memphis Electric Light, Heat and Power Company v. City of Memphis, 271 Mo. 488, 196 S.W. 1113; City of Joplin v. Southwest Missouri Light Co., 191 U.S. 150, 24 S.Ct. 43, 48 L.Ed. 217 [127]; Kansas City Power and Light Co. v. Town of Carrollton, 346 Mo. 802, 142 S.W.2d 849. These cases review many other authorities on the subject.” The court holds that there is no express or implied contract herein which would give any exclusive right to the District to furnish water in the District.

Under this same point (Point I of its brief), the District for the first time injects into the case the doctrine of “prior jurisdiction”. This assignment is not contained in the District’s motion for new trial and is therefore not preserved for appellate review. Civil Rule 79.03, V.A.M.R., Mutual Finance Company, Inc., v. Auto Supermarkets, Inc., Mo.App., 383 S.W.2d 296; Wilson v. Murch, Mo.App., 354 S.W.2d 332; Dial v. Seven-Up Bottling Company, Mo., 373 S.W.2d 53.

Under Point II of its brief, the District contends that the trial court erred in not holding that the City’s right to supply water beyond its corporate boundaries is conditioned upon compliance with terms of Section 386.250(7) and in failing to find that the City had failed to comply with that section. This assignment is not contained in the District’s motion for new trial and is therefore not preserved for appellate review. Civil Rule 79.03 V.A.M.R., Mutual Finance Company, Inc., v. Auto Supermarkets, Inc., Mo.App., 383 S.W.2d 296; Wilson v. Murch, Mo.App., 354 S.W.2d 332; Dial v. Seven-Up Bottling Company, Mo., 373 S.W.2d 53.

The District contends that Chapter 247 gives it exclusive right to supply water within its boundaries but does not point out what section gives it that exclusive privilege or prohibits the City from supplying water into the District. Section 91.050 provides as follows:

“Any city in this state which owns and operates a system of waterworks may, and is hereby authorized and empowered, to supply water from its waterworks to other municipal corporations for their use and the use of their inhabitants, and also to persons and private corporations for use beyond the corporate limits of such city, and to enter into contracts therefor, for such time, upon such terms and under such rules and regulations as may be agreed upon by the contracting parties.”

It is obvious that the above section authorizes the City to furnish water outside its corporate limits to persons and private corporations. The section does not prohibit the City from supplying water to persons or corporations in water districts. In fact, it does not limit or restrict where the City may supply water. If the legislature had intended to restrict the City as to where it could supply water, it could easily have done so by prohibiting it from entering water districts. Since Section 91.-050, above, does not restrict the areas where the City can supply water and Chapter 247 neither restricts the City from the area of the District nor gives the District an exclusive right to supply water, we find no statutory support for the District’s contention.

To support its position, much reliance by the District is placed on the use of the word “boundaries” in the statute. Of course, the District has to have boundaries. So do cities, counties and states. The boundary simply designates the area comprised in the unit, whether it be district, city, county or state. As said in 11 C.J.S. Boundaries § 1, p. 538, “A boundary is a line or object indicating the limit or furthest extent of a tract of land or territory; a separating or dividing line between countries, states, districts of territory, or tracts of land. The term is used to denote the physical object which divides, as well as the line of division itself.” There is nothing magical in the use of the word “boundary”. It simply denotes the limits of the area involved. It has nothing to do as to whether the district has exclusive rights within its “boundary” or not. In section 91.050, supra, the words “corporate limits of such city” are used. These words mean the same thing as boundary of the city. That section expressly authorizes the City to supply water beyond the “corporate limits” or boundaries. The District produces no authority to prevent the City from entering the District or giving it the exclusive right to supply water therein.

The District contends that the trial court erred in finding that there is no actual or threatened irreparable harm caused by the action of respondents. Mr. Mark A. Lucas testified for the District that over a fifteen-year period he was • connected with every bond issue the District floated and that the District was not rated by any investment service, but that the District had better than medium credit — a good credit; that their obligations, both general and special, have a ready market and are very much in demand. When questioned if the acts in issue would be detrimental or beneficial to the bondholders, he stated, “It definitely would affect the bondholder,” but he did not state how and to what extent. He stated that when two thirds of the district in which customers were actually being served was surrendered by de-annexation the District’s credit only suffered “slight damage”. Obviously, if the de-annexation of two thirds of the district where customers were being served only caused “slight damage” to the district, the loss of right to serve water to an area of only 41.59 acres not previously served and which remained within the district for taxing purposes, would not cause the district “irreparable damage”.

A Mr. Bill T. Wall, investment banker, testified for respondents that general obligation bonds were payable from an unlimited ad valorem tax levied upon taxable property within the District and that special obligation bonds are payable solely from revenues.of the water system after operation and maintenance expenses have been paid and that purchasers of these bonds look to the amount produced at the time the bonds are sold.

The evidence discloses that the tract involved here consists of 41.59 acres. Since this tract is not being annexed by the City and will remain in the District for tax purposes, no loss of revenue from general taxes will result. Having water furnished therein and the subdivision developed undoubtedly would enhance the value of the land therein and increase the amount of taxes collectible. The District in the past has never received any revenue and at present time is not receiving any revenue from this area because it has never had and does not now have any customers in the area. What revenue in the future would be available to the District in this area is purely conjectural and dependent upon too many contingencies to support a claim of irreparable damage. It cannot be said, therefore, with any degree of certainty, that the District has lost revenue by reason of the contract of October 18, 1962, between the City and Ong Aircraft Corporation. The boundaries of the District remain unchanged and the District’s taxing power has not been curtailed. Considering all the evidence, there is no credible evidence of any present or future irreparable damage.

The court finds that the trial court’s findings of fact are supported by the evidence and are correct; that its conclusions of law are proper; and that under the law and the evidence, the District is not entitled to a permanent injunction against the respondents.

The judgment of the trial court denying the District’s petition for a permanent injunction against respondents should be and is affirmed.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.