City of St. Louis v. Brinckwirth

• Decision Date: 29 May 1907
• Parties: CITY OF ST. LOUIS v. LOUIS BRINCKWIRTH et al., Appellants
• Court: Missouri Supreme Court

102 S.W. 1091

204 Mo. 280

CITY OF ST. LOUIS v. LOUIS BRINCKWIRTH et al., Appellants

Supreme Court of Missouri, First Division

May 29, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.

Reversed.

Kehr & Tittmann for appellants.

(1) It was admitted that the defendants Brinckwirth and Nolker were not named as parties to the case of City v. Hamilton et al that they were not served personally or by copy or by ordinary order of publication, and that the only jurisdiction of the court in that case over said defendants or their property was obtained by the city counsellor's notice dated December 13, 1895. If that notice is invalid, as against them, then the assessment against their property is null and void. City v. Ranken, 96 Mo. 507; Michael v. City, 112 Mo. 614; City v. Koch, 169 Mo. 591; Leslie v. City, 47 Mo. 478; Railroad v. Young, 96 Mo. 42; Williams v. Kirby, 169 Mo. 628. (2) The city counsellor's notice of December 13, 1895, is not in compliance with the city charter and municipal ordinances, and is null and void as against these defendants. 2 Lewis on Em. Domain (2 Ed.), sec. 367; 15 Encyclopedia of Law, p. 846; City v. Koch, 169 Mo. 591; In re Central Park, 51 Barb. 277; State v. City of Elizabeth, 32 N. J. L. 357; Quackinbusch v. District of Columbia, 20 D. C. 308; Williams v. Kirby, 169 Mo. 622; Peterson v. Baha, 161 Mo. 520; Winningham v. Trueblood, 149 Mo. 572; Stewart v. Allison, 150 Mo. 344; Ozark Land & Lumber Co. v. Lasley, 88 Mo.App. 370; Simmons v. Sardiner, 6 R. I. 255. (3) The judgment rendered by the circuit court, upon the filing of the report of the commissioners in the case of City v. Hamilton, does not affect defendants or their property. It establishes no lien against their property. It is wholly void as against them. Hence, it forms no basis on which special taxbills could be issued against defendants' property, or on which a scire facias could be issued against defendants to show cause why they have not paid the judgment or upon which to base a bill in equity to enforce a supposed lien. Catesche v. Circuit Court, 1 Mo. 608; Bourgeous v. Schrage, 69 Wis. 316; Bennett v. Hall, 184 Mo. 407; State ex rel. v. Klein, 140 Mo. 510; Vaughan v. Daniels, 98 Mo. 234; State v. French, 118 Mo. 15; Gage v. People, 207 Ill. 61; Adams v. San Angelo Water Works Co., 25 S.W. 165; Hurt v. Moore, 19 Tex. 269; Gayle v. Singleton, 1 Stew. (Ala.) 566; Ross v. Adams, 13 Bush (Ky.) 371; Lawless v. Barger, 9 Bush (Ky.) 665; Carter v. Elmore, 119 N.C. 296. (4) Moreover, the records in the case of City v. Hamilton, introduced in evidence by plaintiff, do not show that defendants were notified in the manner provided by the ordinance, or that they voluntarily appeared. Hence, the assessment against their property is void. Michael v. St. Louis, 112 Mo. 614; Taylor v. Todd, 48 Mo.App. 550; Railroad v. Young, 96 Mo. 42; Williams v. Kirby, 169 Mo. 628; City v. Koch, 169 Mo. 591. (5) The petition against defendants is based upon two special taxbills. The taxbills were not offered in evidence. Hence, plaintiff made out no case for recovery.

Charles W. Bates and C. R. Skinker for respondent.

(1) The record entry confirming the commissioners' report in City v. Hamilton is a final judgment. Sec. 10, art. 6, St. Louis Charter; St. Louis v. Thomas, 100 Mo. 223; Eyssell v. St. Louis, 168 Mo. 616; St. Louis v. Annex Realty Co., 175 Mo. 67. (a) It is a judgment. Eppright v. Kauffmann, 90 Mo. 25; Moody v. Deutsch, 85 Mo. 244; Lingo v. Burford, 112 Mo. 149. (b) It is final. State ex rel. v. Klein, 140 Mo. 510; section 8, art. 6, charter. (2) The sufficiency of the notice upon which the assessments sought to be collected by this suit are based, is not now open to examination, because that question was finally determined in City v. Hamilton. Paulsen v. Portland, 149 U.S. 40; Lingo v. Burford, 112 Mo. 149; State ex rel. v. Branch, 134 Mo. 592; Short v. Taylor, 149 Mo. 517; Piper v. Boonville, 32 Mo.App. 138; Wilson v. Lubke, 176 Mo. 216; Whitaker v. Bramson, Fed. Cas. 17526; Hilton v. Jones, 159 U.S. 589; Foltz v. Railroad, 60 F. 316; Gunter v. Coast Line, 200 U.S. 290; Waples, Proceedings in Rem, sec. 71; Wright v. Marsh, 2 G. Greene 109; Kane v. McCown, 55 Mo. 199; People v. Rochester, 21 Barb. 666; Tibbitts v. Railroad, 54 Ill.App. 180; Kirchman v. Railroad, 58 Ill.App. 518; Railroad v. Cheetham, 58 Ill.App. 318. If not sufficient, appellants should have complained of the insufficiency in the former case, and are now barred thereof. Seafield v. Bohne, 169 Mo. 551; Leonard v. Sparks, 117 Mo. 103. (3) The notice, if re-examinable, is nevertheless sufficient. Such notice need only be appropriate to the nature of the case, less formal than in ordinary court proceedings, even in proceedings based upon the power of eminent domain. Davidson v. New Orleans, 96 U.S. 104; Hager v. Reclamation District, 111 U.S. 708; Railroad v. Pennsylvania, 134 U.S. 239; St. Louis v. Ranken, 96 Mo. 505. No notice is necessary to one whose land may be taxed for benefits for the opening of a street. Goodrich v. Detroit, 184 U.S. 427. In both special and general taxation the statute itself may convey the only notice requisite. Hodge v. Muscatine County, 196 U.S. 281; State Railroad Tax Cases, 92 U.S. 575; Kentucky Railroad Tax Cases, 115 U.S. 321; Bank v. Pennsylvania, 167 U.S. 467; Lander v. Bank, 186 U.S. 469; State ex rel. v. Cummings, 151 Mo. 57. The notice is in fact sufficient. Waples, Proceedings in Rem, sec. 71. (4) The phrase in the notice "an alley" sufficiently comprehends the purpose of ordinance 17721. St. Louis v. Lane, 110 Mo. 254. (5) In this case the city has two judgments to rely upon, (a) The separate assessments for benefits as set out in the commissioners' report, and (b) the judgment of the circuit court confirming the commissioners' report. 1. The several benefit assessments contained in the commissioners' report are of themselves judgments. Irrigation District v. Bradley, 164 U.S. 169; St. Louis v. Ranken, 96 Mo. 505; Railroad v. Jones, 29 F. 195; Plum v. Kansas City, 101 Mo. 531; Burke v. Kansas City, 118 Mo. 321; Plumer v. Boom Co., 49 Wis. 455; State v. Richmond, 26 N.H. 235; Stanley v. Supervisors, 121 U.S. 550; Palmer v. McMahon, 133 U.S. 669; Missouri ex rel. v. Gottlieb, 190 U.S. 427; State ex rel. v. Cummings, 151 Mo. 58; Eppright v. Kauffmann, 90 Mo. 27. 2. These judgments are separate and severable. St. Louis v. Lanigan, 97 Mo. 175; Kansas City v. Block, 175 Mo. 443. 3. Such judgments are in rem. Kansas City v. Duncan, 135 Mo. 583; Overby v. Gordon, 177 U.S. 220; Leigh v. Green, 193 U.S. 90; Boswell v. Otis, 9 How. 348; Freeman v. Alderson, 119 U.S. 185; Crane v. Elizabeth, 38 N.J.Eq. 343; United States v. Dunnington, 146 U.S. 352; Ballard v. Hunter, 204 U.S. 241; Beyer v. Trust Co., 63 Mo.App. 528; Jeter v. Hewett, 22 How. 364; Michaels v. Post, 21 Wall. 398; Pennoyer v. Neff, 95 U.S. 734; French v. Taylor, 33 Wash. 1; affirmed, 199 U.S. 274. 4. Such judgments fix the status of the land assessed as taxable and the amount of that tax. Woodruff v. Taylor, 20 Vt. 73; Street v. Insurance Co., 75 Am. Dec. 721; Lord v. Chadbourne, 42 Me. 443. 5. Such benefit assessments as ascertained by the commissioners become a lien upon the parcel against which assessed. Sec. 5, art. 6, charter. Such lien is inchoate until the report shall have been confirmed by the court, when the lien becomes fixed. Wilkinson v. District of Columbia, 22 D. C. A. 289.

OPINION

GRAVES, J.

This is an action by the city of St. Louis against Louis Brinckwirth and William F. Nolker, upon two taxbills issued for assessed benefits against two tracts of land owned by them in City Block No. 3788, in the city of St. Louis. The petition is in two counts. Answer, general denial. In the lower court plaintiff had judgment upon each count, and defendants appealed. After the cause reached this court, the defendant (appellant) William F. Nolker, died, and his death was suggested by his co-appellant, Brinckwirth, and the cause proceeded as the suit of such surviving appellant, under the provisions of section 857, Revised Statutes 1899.

By ordinance No. 17721, approved July 24, 1894, the city of St. Louis directed and authorized the establishment and opening of two alleys in City Block No. 3788. This block is bounded on the west by Acadmy avenue, upon which it fronts 261 feet, on the north by Easton avenue, on which it fronts 966 feet; on the east by King's Highway boulevard, on which it fronts 277 feet; and on the south by Wells avenue, on which it fronts one thousand feet. One alley provided for by said ordinance No. 17721, was an alley 15 feet in width, running through said City Block 3788 from north to south, that is, from Easton avenue to Wells avenue, the east line of which alley commenced at a point 163 feet and one inch west of the west line of King's Highway boulevard, and ran north to a point on Easton avenue, one hundred feet west of the west line of King's Highway boulevard. The other alley provided for by this ordinance ran east and west through said block, about the middle thereof, beginning, however, at the west line of this north and south alley, first above described, and ending at Academy avenue, on the west of said city block. This alley was likewise fifteen feet in width. The property belonging to Brinckwirth and Nolker was on the east of this north and south alley and between it and King's Highway boulevard.

It appears that after the passage of Ordinance No. 17721, the city brought an action to condemn property and for the appointment of commissioners to assess damages and benefits. The taxbills in suit were for benefits charged to defendants' property in this proceeding.

To sustain the issues upon its part, the city, over the objections...