Barker ex rel. Village of Jerico Springs v. Phelps

Missouri Court of Appeals

Barker ex rel. Village of Jerico Springs v. Phelps

39 Mo. App. 288, 1890 Mo. App. LEXIS 76

DecidedFebruary 17, 1890

StatusPublished

This text of 39 Mo. App. 288 (Barker ex rel. Village of Jerico Springs v. Phelps) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Barker ex rel. Village of Jerico Springs v. Phelps, 39 Mo. App. 288, 1890 Mo. App. LEXIS 76 (Mo. Ct. App. 1890).

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Opinion

Gill, J.

This action is. one brought by the plaintiffs to recover the penalty provided in section 5022, Revised Statutes, 1879 (amended by act approved March 18, 1887 — Acts, 1887, p. 93). Defendant is charged, as the chairman of the board of trustees of the Village of [290]*290Jerico Springs, with, failing to make ont and publish the financial statement of the village, on September 1, 1886, and March 1, 1887, as required by section 5021, Revised Statutes, 1879. On trial before the circuit court, without the aid of a jury, a judgment was rendered against the defendant, from which an appeal was taken to this court.

There is no case stated against this defendant in the petition filed, nor any case made by the evidence offered at the trial. The petition alleges that the village is a corporation, incorporated under the laiys of Missouri in the name and style of “ The Village of Jerico Springs,” whereas no municipal corporation caw, or does, exist in the state with any such name. If Jerico Springs has been incorporated under the law, it must be under the name and style “ The Inhabitants of the Village of Jerico Springs,” and under no other name. R. S. 1879, sec. 5004.

Again, when this suit was instituted only a “ taxpayer” of said town was authorized to move in the matter. See section 5022, Revised Statutes, 1879, as amended by act, March 18, 1887. Laws, 1887, p. 93. The petition does not allege — nor is there any evidence, even, tending to show— that J. M. Barker is, or was at that time, such taxpayer. It matters no,t that at the dates of defendant’s alleged delinquencies (September, 1886, and March, 1887) “ any person ” was authorized by the old section before amendment to institute such a proceeding for the use of the village corporation. It is sufficient to say that the action was not brought until after the amendment of 1887, when by the terms thereof only taxpayers could put the law in motion.

The remedy as marked out by the law as it existed when the suit was instituted was the proper and only remedy in this action. City of Jefferson v. Edwards, 37 Mo. App. 617.

The judgment of the circuit court is reversed.

All concur.

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Gill, J.

This action is. one brought by the plaintiffs to recover the penalty provided in section 5022, Revised Statutes, 1879 (amended by act approved March 18, 1887 — Acts, 1887, p. 93). Defendant is charged, as the chairman of the board of trustees of the Village of [290]*290Jerico Springs, with, failing to make ont and publish the financial statement of the village, on September 1, 1886, and March 1, 1887, as required by section 5021, Revised Statutes, 1879. On trial before the circuit court, without the aid of a jury, a judgment was rendered against the defendant, from which an appeal was taken to this court.

There is no case stated against this defendant in the petition filed, nor any case made by the evidence offered at the trial. The petition alleges that the village is a corporation, incorporated under the laiys of Missouri in the name and style of “ The Village of Jerico Springs,” whereas no municipal corporation caw, or does, exist in the state with any such name. If Jerico Springs has been incorporated under the law, it must be under the name and style “ The Inhabitants of the Village of Jerico Springs,” and under no other name. R. S. 1879, sec. 5004.

Again, when this suit was instituted only a “ taxpayer” of said town was authorized to move in the matter. See section 5022, Revised Statutes, 1879, as amended by act, March 18, 1887. Laws, 1887, p. 93. The petition does not allege — nor is there any evidence, even, tending to show— that J. M. Barker is, or was at that time, such taxpayer. It matters no,t that at the dates of defendant’s alleged delinquencies (September, 1886, and March, 1887) “ any person ” was authorized by the old section before amendment to institute such a proceeding for the use of the village corporation. It is sufficient to say that the action was not brought until after the amendment of 1887, when by the terms thereof only taxpayers could put the law in motion.

The remedy as marked out by the law as it existed when the suit was instituted was the proper and only remedy in this action. City of Jefferson v. Edwards, 37 Mo. App. 617.

The judgment of the circuit court is reversed.

All concur.

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39 Mo. App. 288, 1890 Mo. App. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-ex-rel-village-of-jerico-springs-v-phelps-moctapp-1890.

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