GALVIN v. KANSAS CITY, MISSOURI, Mo. Ct. App., Judgment, Law, casemine.com

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ED. GALVIN, JR., APPELLANT, v. KANSAS CITY, MISSOURI, RESPONDENT.

John F. Cell for appellant.

The salary of plaintiff having been fixed by city ordinance during the period of his employment, it did not lie "in the mouths" of its other administrative officers "to say that they should work for less. He could not contract with them to do so, for their right to compensation was fixed by law, the same as his own, and did not rest upon contract." And therefore, no waiver or estoppel — a species of contract — could be made by said city, denying plaintiff his rights according to law. Orthwein v. City of St. Louis, 178 S.W. 87, l.c. 89; Bates v. St. Louis, 153 Mo. 18, 54 S.W. 439; State v. Walbridge, 153 Mo. 194, 54 S.W. 447; Glaney v. United States, 182 U.S. 595, 21 Sup. Ct. 891; Miller v. United States, 103 F. 413; Bodenhofer v. Hogan, 142 Iowa 321, 134 A.S.R., 418, 120 N.W. 659, 19 Ann. Cas. 1037; Gallaher v. Lincoln, 63 Neb. 339, 88 N.W. 505; Nelson v. Superior, 109 Wis. 618, 85 N.W. 412; Rettinghouse v. Ashland, 106 Wis. 595, 83 N.W. 555; People ex rel. Satterlee v. Board of Police, 75 N.Y. 38; Grant v. Rochester, 79 A.D. 460, 80 N.Y.S. 522; affirmed 175 N.Y. 473, 67 N.E. 1083; Golding v. N.Y., 76 N.Y.S. 1020; Rhodes v. Tacoma, 97 Wn. 341, 166 P. 647; Galpin v. Chicago, 269 Ill. 27, 109 N.E. 713; State ex rel. Kercheval v. Nashville, 15 Lea (Tenn.) 697, 54 Am. Rep. 427; Purdy v. Independence, 75 Iowa 356, 39 N.W. 641; Pittsburgh v. Goshorn, 230 Pa. 212, 79 A. 505; Hoffman v. Chippewa, 77 Wis. 214, 8 L.R.A. 781, 45 N.W. 1083; Crutcher v. Johnson County, 79 S.W.2d 932, l.c. 933 (Texas Civ. App.); Russell v. Cordwent (Tex. Civ. App.), 152 S.W. 239; Pitsch v. Bank, 305 Ill. 265, 137 N.E. 198; Wolf v. Humboldt Company, 36 Nev. 26, 131 P. 964; Ohio Bank v. Hopkins, 8 App. D.C. 146; Settle v. Sterling, 1 Idaho, 258; Nortonville v. Woodward, 191 Ky. 730, 231 S.W. 224; Abbott v. Hayes, 78 Neb. 729, 111 N.W. 780; State ex rel. Bill v. Elting, 29 Kan. 399; Kehn v. State, 93 N.Y. 291; Francis v. Leavy, 21 P.2d 979, 131 Cal.App. 620; Whiting v. United States, 35 Ct. Cl. 291; People v. Board of Auditors, 41 Mich. 4, 2 N.W. 180; Clark v. State, 142 N.Y. 101, 36 N.E. 817; Moore v. Nation, 80 Kan. 672; Pitt v. Board of Education, 216 N.Y. 304; Moore v. Board of Education, 121 App. D. 862, 106 N.Y.S. 983; affirmed 195 N.Y. 614, 89 N.E. 1105; McGrade v. New York, 126 App. D. 362, 110 N.Y.S. 517; Carman v. New York, 140 N.Y.S. 1023; Bishop v. City of Omaha, 264 N.W. 447; City of Louisville v. Fisher, 258 Ky. 84, 79 S.W.2d 345; Peterson v. City of Parsons, 139 Kan. 701, 33 P.2d 715; Myers v. City of Calipatria (Cal.), 35 P.2d 377; Heil v. Mayor and Board of Commissioners of City of Wildwood, 11 N.J. Misc. 171, 164 A. 868; Bell v. Town of Mabton (Wash.), 5 P.2d 514. The fact that plaintiff was not an officer within the technical meaning of the term "officer" does not change the general rule. Riley v. Mayor, etc., of New York, 96 N.Y. 331; Francis v. Leavy, 21 P.2d 979, 131 Cal.App. 620.

Fred Bellemere, City Counselor, Marcy K. Brown, Jr., and Arthur R. Wolfe, Ass't City Counselors, for respondent.

(1) The court did not err in overruling plaintiff's motion for judgment on the pleadings and, upon plaintiff's refusal to plead further, in dismissing plaintiff's petition and rendering judgment for defendant, because (a) since appellant was not a public officer but was employed at will, the matter of salary reduction was legal and justified; (b) it is the duty of the city to live within its revenue and the matter of salary reduction employed to attain this end, under circumstances of depression and lack of revenue, was the only reasonable method and did not violate any charter or ordinance provision; (c) the leave of absence signed by appellant was legal and binding; (d) the leave of absence signed by appellant constituted a legal donation of that portion of his salary and services to the city; (e) the fact constituted a complete waiver by appellant and a complete estoppel of any right to collect any further compensation. State ex rel. v. Simmons Hardware Company, 109 Mo. 118, 18 S.W. 1125; Cammann v. Edwards, 100 S.W.2d 946, l.c. 850; Barfield v. City of Atlanta (Ga.), 187 S.E. 407; Steele v. City of Chattanooga (Tenn.), 84 S.W.2d 590; Lehman v. City of Toledo (Ohio), 192 N.E. 537; Whalen v. Special Justice, and Whalen v. City of Malden, 3 N.E.2d 1005 (Mass.); Coughlin et al. v. City of Milwaukee, 279 N.W. 62. (2) People ex rel. Mulvey et al. v. City of Chicago et al., 12 N.E.2d 13; Taylor v. City of Philadelphia, 190 A. 663; DeBoest v. Gambell, City Auditor, 58 P. 72 (Ore.); Chandler v. City of Elgin, 278 P. 581; Bannister v. City of New York, 82 N.Y.S. 244; Downs v. City of New York, 78 N.Y.S. 442; Kirk v. City of New York, 130 N.Y.S. 1061; Collins v. City of New York, 136 N.Y.S. 648; McCarthy v. McGoldrick, Comptroller, 194 N.E. 406, 266 N.Y. 199; Snell v. Byington et al., 37 P.2d 734 (Calif.); State ex rel. Heffernan v. City of Hoquiam, 56 P.2d 1012 (Wash.); Schuh v. City of Waukesha, 265 N.W. 699 (Wisc.); Adams v. Mayor, etc., of City of Plainfield, 161 A. 647 (N.J.); People ex rel. Henryson et al. v. City of Elgin, 5 534 N.E.2d 856 (Ill.); Nelson v. City of Eveleth, 267 N.W. 261 (Minn.); Bell v. Town of Sullivan, 63 N.E. 209 (Ind.); Downs v. City of New York, 78 N.Y.S. 442; Ryan v. City of New York, 177 N.Y. 277; Grady v. City of New York, 74 N.E. 448; Peterson v. City of New York, 213 N.Y.S. 322; Burns v. City of New York, 134 N.Y. 759; McCarthy v. Mayor, etc., of New York, 96 N.Y. 1; Lazinsk v. State, 148 N.Y.S. 808; Clark v. City of New York, 142 N.Y. 101; Hobbs v. City of Yonkers, 102 N.Y. 13; Drew v. Mayor, etc., City of New York, 8 Hun. 443; Ryan v. City of New York, 177 N.Y. 271; Riordan v. City of Chicago, 124 Ill. App. 183; Wagoner v. Philadelphia, 215 Pa. 379; Love v. Mayor and Aldermen, Jersey City, 40 N.Y.L. 456; Coyne v. Rennie, 97 Cal. 590, 32 P. 578; McInery v. City of Galveston, 58 Tex. 334; Rau v. City of Little Rock, 34 Ark. 303; Bodell v. City of Battle Creek, 270 Mich. 445, 259 N.W. 658; O'Hara v. Town of Park River, 1 N.D. 279, 47 N.W. 380. (2) The doctrines of both waiver and estoppel were applicable to plaintiff and precluded his right of recovery herein. Galbreath v. The City of Moberly, 80 Mo. 484; Leach v. Railroad Company, 86 Mo. 27; Wood v. Kansas City, 162 Mo. 303, 62 S.W. 433; McNulty v. Kansas City, 201 Mo. App. 562, 198 S.W. 185; Henderson v. Koenig and City of St. Louis, 192 Mo. 690, 91 S.W. 88; State ex rel. Whalen v. Player, 280 Mo. 496, 218 S.W. 859; State ex rel. Kinsey v. Messerly et al., 198 Mo. 351, 95 S.W. 913; State ex rel. Buchanan County v. Imel, 242 Mo. 293, 146 S.W. 783. (3) Plaintiff was not a public officer. Administrative Code of Kansas City, Section 46, Article II; State ex rel. v. Johnson, 123 Mo. 43; State ex rel. v. Gordon, 238 Mo. 168; State ex rel. Pickett v. Truman, 233 Mo. 1018, 264 S.W.2d 105; Little River Drainage District v. Lassiter, 325 Mo. 493, 28 S.W.2d 716. (4) As to constitutional and charter provisions concerning expenditures of revenues. Lamar Water, etc., Co. v. City of Lamar, 128 Mo. 188; Harris v. Mortgage Company, 244 Mo. 664; State ex rel. Pyle v. University City, 8 S.W.2d 73; State ex rel. v. Neosho, 203 Mo. 40; State ex rel. v. Gordon, 251 Mo. 303. (5) Discussion of appellant's cases. Glavey v. U.S., 182 U.S. 595; Miller v. U.S., 103 F. 413; Orthwein v. City of St. Louis, 265 Mo. 556.

1. — Appeal and Error. Where there is conflict between abstract of record and transcript, transcript will control.

2. — Appeal and Error. Motion for judgment on pleadings is in some respects like a demurrer, in that it admits facts well pleaded, but in other respects, it differs essentially from demurrer; it is not a part of record, but a matter of exception, and can only be made part of record by bill of exception.

3. — Appeal and Error — Pleading. Order overruling motion for judgment on pleadings is not a final judgment from which appeal will lie, but party may plead over or proceed to trial on issues joined.

4. — Pleading. Where plaintiff elected to stand on pleadings after court overruled motion for judgment on pleadings, it was equivalent to refusal to go to trial on issues which court ruled had been made by pleadings, and no further pleading was filed, no evidence offered or heard, and no agreed statement of facts submitted, there was nothing court could do except dismiss the petition and assess costs.

5. — Pleading. Court may have overruled motion for judgment on pleadings either because allegations of fact contained in the answer, when considered as true (as they must be for purpose of motion for judgment on pleadings) stated a complete legal defense, or that all facts necessary to determination of issues were not admitted in answer, and if latter were true, no final disposition of case can be made until omissions are supplied by evidence.

6. — Appeal and Error. Where plaintiff elected to stand on pleadings after court overruled motion for judgment on pleadings, and no further pleading was filed, nor evidence heard, nor agreed statement of facts. judgment of court overruling motion will be affirmed, for if examination discloses issues of fact made by pleadings, reviewing court would be required to remand case for trial upon such issues and perhaps to later rule another appeal; Court of Appeals will not pass upon a case piecemeal.

SPERRY, C.

Plaintiff, Ed Galvin, Jr., a former employee of defendant, Kansas City, Missouri, a municipal corporation, sued the latter for back salary alleged to be due and unlawfully withheld. The petition was filed January 14, 1936, and answer was timely filed. Plaintiff filed motion for judgment on the pleadings. Thereafter, defendant by leave of court, withdrew its answer, amended same by interlineation and refiled it. The abstract filed herein shows the following record judgment:

"Now on this day comes defendant and by leave of court withdraws its answer herein and is given leave to amend the same by interlineation, and after said amendment by interlineation having been made, defendant refiles its answer herein. Thereafter plaintiff refiles his motion for judgment on the pleadings. Said motion for judgment on the pleadings filed by plaintiff was duly taken up by the court and the court being duly advised thereupon was by the court overruled, whereupon the plaintiff refused to plead further. Whereupon, it is ordered, adjudged and decreed by the court that plaintiff's petition be and the same is hereby dismissed and that defendant have and recover of and from plaintiff all costs herein and have execution therefor."

According to the transcript furnished by the clerk of the court the following is omitted from the above purported record, to-wit:

"Whereupon Plaintiff elects to stand on his motion for judgment on the pleadings and refused to plead further."

Where there is a conflict as between the abstract of the record and the transcript, as here, the latter will control. [McDonnell v. G.B. Peck Dry Goods Company, 228 S.W. 759, 760.]

From the above statement and record it appears that the sole question for our determination is whether or not the trial court committed error in dismissing plaintiff's petition. Since no evidence was heard nor any agreed statement of facts submitted that is the only question that can be before us. The trial court could not, and did not, rule on the facts, for none were before it.

A motion for judgment on the pleadings is, in some respects, like a demurrer; but, in other respects, it differs essentially from a demurrer. The Supreme Court, in Sternberg v. Levy, 159 Mo. 617, l.c. 629, said:

"A motion for judgment on the pleadings is not a demurrer. It partakes of some of the qualities of a demurrer but it is not a demurrer, and hence it is not a part of the record. It is a matter of exception and can only be made a part of the record by a bill of exceptions.

"It partakes of the nature of a demurrer, in that, it admits all facts that are well pleaded, and if it is overruled the order overruling it is not a final judgment from which an appeal will lie, but the party may plead over or proceed to trial on the issues joined. On the contrary, if it is sustained, judgment goes at once, whereas if a demurrer is sustained the order is not a final judgment, the party has right to plead over, and it is only in case of refusal to plead over that final judgment can be rendered on demurrer."

The above excerpt is quoted with approval by Judge GRAVES in Leahy v. Mercantile Trust Company, 296 Mo. 561, l.c. 564, where many other cases are also cited.

Therefore, it appears that, when the court overruled plaintiff's motion for judgment on the pleadings, plaintiff had a choice as between two courses of action, to-wit: (a), he could have pleaded further, or, (b), he could have gone to the trial. According to the record he did neither but elected to stand on the pleadings. This was equivalent to a refusal to go to trial on the issues which the court had ruled were made by the pleadings.

No further pleading was filed, no evidence was offered or heard, and no agreed statement of facts was submitted to the court. With the case standing in that condition there was nothing further that the court could do, other than what he did, namely, dismiss the petition and assess costs. [Benz v. Phillips Pipe Line Company, 47 S.W.2d 170, l.c. 172; Hodges v. Brooks, 110 S.W.2d 1130, l.c. 1134.] The trial court may have been prompted to overrule the motion for judgment on the pleadings for either of two reasons, to-wit (a), because the allegations of fact contained in the answer, when considered as true, as they must be for the purpose of the motion (Cammon v. Edwards, 100 S.W.2d 846), stated a complete legal defense; or, (b), that all facts necessary to the determination of the issues in the cases were not admitted in the answer. If the latter be true, then no final disposition of the case can be made until such controverted or omitted facts are supplied by evidence. Assuming plaintiff's petition to state facts sufficient to constitute a cause of action, such facts do not prove themselves by the mere filing of the petition; and defendant's answer may, or may not, admit all of such facts. If, upon examination, we should determine that there are issues of fact made by the pleadings we would be required to remand the case for trial on such issues; and, perhaps, we would be called upon, later to rule another appeal. We have heretofore said that we will not pass on a case piecemeal. The judgment of the trial court should be affirmed. Campbell, C., concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. Shain, P.J., and Bland, J., concur; Kemp, J., not sitting.

GALVIN v. KANSAS CITY, MISSOURI

ED. GALVIN, JR., APPELLANT, v. KANSAS CITY, MISSOURI, RESPONDENT.

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