Lundstrom v. City of Excelsior Springs

*625 WALKEB, J. This is a proceeding in equity in which the plaintiffs seek to restrain the city of Excelsior Springs from issuing special tax bills for the construction of certain district sewers. The defendants are the city, the mayor, the city engineer, the members of the council and the contractors who did the work. The answer of the defendants put in issue the allegations of the petition. The case having been tried as in equity on the 25th day. of March, 1922, was submitted to, the court upon the pleadings and proof and was taken under advisement. On May 6, 1922, the court rendered therein the following judgment: \ “Now, on this 6th day of May A. D. 1922, come again the parties, by their respective attorneys, and the court, after due consideration of the matters in issue herein, and being now sufficiently advised in the premises, finds that there is no equity in the petition of the plaintiffs and hereupon denies the prayer thereof. “Wherefore, it is considered, ordered, adjudged, and hereby decree by the eoiirt that the plaintiffs’ bill be and the same is hereby dismissed, and that the defendants go hence without day and recover of the plaintiffs their costs in this behalf expended and incurred, and have thereof execution.” Prom this judgment the plaintiffs have appealed to this court. Time was taken for the preparation of a bill of exceptions, but nothing is before us except portions of the record proper. *626 *625 I. There is no tenable ground for the assumption that the trial court did not determine this case upon its *626 merits. Wliat purpose could be subserved either in set-011^ ^11 ^ie 00Iirt’s findings the presence °f the parties and their attorneys followed by the entry that “the court, after due consideration of the matter in issue, finds that there is no equity in the petition and denies the prayer thereof,” unless the hearing had been upon the merits. No affirmative relief was asked by the defendants and under such circumstances the decree or judgment was in the form frequently employed and which has not, so far as we are informed, been criticized. A case in point, illustrative of the correctness of this conclusion, is that of Foote v. Gibbs, 1 Gray (Mass.) 412, in which it is said: “There is nothing to indicate the grounds of dismissal in this case, except the fact of dismissal, after an appearance for the defendants. But the authorities, both in England and in this country, are decisive, that a general entry of ‘bill dismissed,’ with *no words of qualification, such as ‘dismissed without prejudice,’ or ‘without prejudice to an action at law,’ or the like, is conclusively presumed to be upon the merits, and is a final determination of the controversy. ’ ’ II. The findings of the judgment at bar are sufficient to authorize the application of the presumption recognized in Thurston v. Thurston, 99 Mass. 39, and other cases of like tenor cited by the respondent. There was no question raised at any time concerning the sufficiency pf the petition. The record, preliminary to the submission of the case, expressly declares that the cause was submitted “upon the pleadings and proof adduced.”. Thus submitted the court reached its conclusion in regard thereto “after due consideration of the matter in issue.” What was the matter in issue? From the petition, which must be our measure in deter-" mining the plaintiff’s meaning, it was to obtain a writ of injunction. It was therefore the determination of this question which the court had under consideration and which it disposed of adversely to the plaintiffs. The court’s finding, therefore, that there was “no equity in *627 the petition” in view of all the facts, cannot be otherwise construed than as meaning that the evidence adduced did not support the' issue attempted to be made, and not that the formal allegations of the petition were insufficient to state a cause of action. III. It is enough to say that there was no request for a finding of facts, and in the absence of such á request a finding was not required by the statute arL(^ our mlings construing the same. [Fruin v. O’Malley, 241 Mo. 250; Carthage v. Electric Co., 193 Mo. App. 565.] The judgment, therefore, is not subject to objection on account of its-generality. Only a part of the record proper has been preserved for review." Nothing therein can be construed as affecting the validity of the judgment. The court was clothed with complete jurisdiction to hear and determine the case. The judgment being regular ‘will be affirmed. All concur.