Thompson v. Scott

Citation19 S.W.2d 1063,323 Mo. 790
Decision Date13 September 1929
Docket Number28096
PartiesFord W. Thompson et al., Executors of Will of William B. Thompson, Appellants, v. Walter Scott and City of St. Louis
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Affirmed.

W B. & Ford W. Thompson for appellants.

(1) The facts pleaded by plaintiff and admitted to be true show quite clearly and unmistakably that the court erred in not canceling the said tax bills, for the reason that the sidewalk was actually laid upon a strip of land owned by plaintiff in fee simple and that the city had no title whatever to the same, and therefore could not issue a valid special tax bill for the construction of a sidewalk upon said strip of land which would constitute a valid lien upon the title of the plaintiff. (2) The method employed by the administrative officers of the city, in the administration of the ordinances under which the city attempted to claim title to the land upon which the sidewalk was laid, shows conclusively that the section of Kingshighway in which plaintiff's land is situated was discriminated against in a manner which denied to plaintiff and to his land located in that section an equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States. Yick Wo v. Hopkins, 118 U.S. 356; Williams v. Mississippi, 170 U.S. 225; Barbier v Connolly, 113 U.S. 27; Bells Gap Ry. v. Pennsylvania, 134 U.S. 232; Florida Central Ry. v. Reynolds, 185 U.S. 471; Connolly v. Sewer Pipe Co., 184 U.S. 564; Hayes v. Missouri, 120 U.S. 68; Traux v. Corrigan, 257 U.S. 312; St. Louis & Southwestern Ry. v. Arkansas, 235 U.S. 350; Western Union Telegraph Co. v. Kansas, 216 U.S. 27; Galveston Ry. Co. v. Texas, 210 U.S. 227; Trimble v. Seattle, 231 U.S. 683; Smith v. Ry. Co., 181 U.S. 248; Whitback v. Bank, 127 U.S. 193; Fargo v. Hart, 193 U.S. 490; Albers v. St. Louis, 289 Mo. 543.

Nolan & Garvey for respondent Scott.

(1) Alleged defects in a prior condemnation suit, to which the appellant was a party, and in which judgment has become final, cannot be made the basis of a collateral attack on the validity of special tax bills issued for sidewalks constructed on the land taken in the condemnation suit. Vrana v. St. Louis, 164 Mo. 146; Buddecke v. Ziegenhein, 122 Mo. 239; Michael v. St. Louis, 112 Mo. 610; Evans v. Haefner, 29 Mo. 141; Sedalia v. Ry. Co., 17 Mo.App. 105. (2) The appellant having accepted the damages awarded him in the condemnation suit, and paid to him by the city for the land appropriated and on which the sidewalks were subsequently constructed, is no longer in position to urge that the "land was not lawfully acquired by the city." Union Depot Co. v. Frederick, 117 Mo. 138; Burke v. Kansas City, 118 Mo. 309. (3) The judgment in the condemnation suit, to which the appellant was a party and made appearance and defended, having become final, is binding and conclusive on the appellant on all questions of law asserted therein relating to the right of the city to appropriate the ground of the appellant and on which the city subsequently caused sidewalks to be constructed. Murphy v. Brown, 286 Mo. 390; Bryant v. Kansas City, 209 Mo.App. 210; Bray v. Construction Co., 203 Mo.App. 642; Zielda Forsee Inv. Co. v. Phoenix B. & C. Co., 143 Mo.App. 357.

Julius T. Muench and Oliver Senti for respondent city.

(1) The city paid the damages into court before it took possession of plaintiff's land. Thompson v. City, 253 S.W. 971. Final judgment has been entered in the condemnation suit referred to in the petition. The appellant in this case made application to the circuit court for, and received, the money awarded for his property appropriated in the condemnation suit, and entered satisfaction of judgment therein. (2) This court has decided adversely to the appellant every issue that can be raised on the record in this case. Thompson v. St. Louis, 253 S.W. 969.

OPINION

Atwood, P. J.

This suit was instituted in the Circuit Court of the City of St. Louis on the 15th day of April, 1924, by William B. Thompson to cancel certain special tax bills issued by said city against certain real estate belonging to him for the cost of constructing a sidewalk adjacent thereto. The defendants were Walter Scott and the city of St. Louis. The latter answered with a general denial, and the former filed a general denial, coupled with a cross-bill asking for a special judgment enforcing the lien of the twelve tax bills in question. The cause was submitted to the trial court on November 6, 1925, under stipulation that the facts alleged in both petition and cross-bill should be taken as true. On January 18, 1926, the trial court entered judgment against plaintiff and in favor of both defendants on the petition, and a special judgment in favor of defendant Scott enforcing the lien of the tax bills in the total sum of $ 1098.13. From this judgment plaintiff appealed, June 16, 1926. Mr. Thompson died October 16, 1926, and on April 8, 1927, the cause was revived in this court in the names of the executors of the last will and testament of the deceased.

Appellant's assignment of errors is (1) that the only judgment the trial court could have properly entered was "a judgment in favor of plaintiff on his petition and against defendant Scott on his cross bill;" and (2) that the judgment entered "denies to the plaintiff the equal protection of the law guaranteed to the plaintiff by the Fourteenth Amendment to the Constitution of the United States."

In urging the error first assigned counsel for appellants say:

"The facts pleaded by plaintiff and admitted to be true show quite clearly and unmistakably that the court erred in not canceling the said tax bills, for the reason that the sidewalk was actually laid upon a strip of land owned by plaintiff in fee simple and that the city had no title whatever to the same, and therefore could not issue a valid special tax bill for the construction of a sidewalk upon said strip of land which would constitute a valid lien upon the title of the plaintiff."

In anticipation of briefs subsequently filed by respondents, counsel for appellants direct our attention to the case of City of St. Louis v. Christian Brothers College et al., decided by this court in banc April 13, 1914, reported in 257 Mo. 541, and also to the case of Thompson v. City of St. Louis et al., decided by this court July 31, 1923, and reported in 253 S.W. 969. The first was a street widening case, in which, according to plaintiff's petition, the said William B. Thompson was a defendant and the very land upon which the sidewalk here in question was laid was sought to be condemned. According to appellants' brief the latter was a suit by plaintiff herein to cancel tax bills issued for paving the same street that was involved in this street widening case. With reference to the street widening case counsel for appellants say "this case went back for a new trial, and Mr. Thompson amended his answer and his exceptions and set up all of the averments that are now in this petition, and that case is still pending, and there has never been a final judgment rendered in that case, which is still pending as admitted by the stipulation."

It appears from plaintiff's petition that the city of St. Louis by repealing Ordinance No. 24220 undertook to authorize the widening of the street involved in this suit and in said Christian Brothers College condemnation proceeding, and that subsequent to its passage and pursuant thereto the city by said condemnation suit, the said William B. Thompson being a party defendant, undertook to condemn the land described in said ordinance, including the land upon which the sidewalk here in question was constructed. Among other things said petition alleges:

"That pursuant to the charter, commissioners were appointed by the court in said suit, to fix the damages to the property taken pursuant to the provisions of said Ordinance No. 24220, and likewise to fix the benefits assessable against the property by reason of the opening and establishing of Kingshighway as a mere street under said ordinance. That said commissioners so appointed by the court rendered their report assessing damages to the owners of the property taken, among whom was this plaintiff, and likewise assessing benefits to the property owners, among whom likewise was this plaintiff. That within the time required by law this plaintiff filed exceptions to said report, wherein this plaintiff did expressly state all of the facts herein enumerated in this petition, as and for a ground and reason that said Ordinance No. 24220 was invalid and void, and violative of the provisions of Section 1 of Article XIV of the Amendment of the Constitution of the United States, which provides: 'Nor shall any State deny to any person within its jurisdiction the equal protection of the law.' That said suit No. 58,478 is still pending in said circuit court and no final judgment has as yet been entered therein."

The stipulation above referred to and offered in evidence when this case came on for hearing November 6, 1925, is as follows:

"Defendants in open court, in lieu of specific proof and introduction of evidence to establish and prove the facts alleged in plaintiff's petition, admit that all of the facts stated in said petition are ture.

"Plaintiff on the other hand, likewise in open court, in lieu of specific proof and introduction of evidence to establish and prove the facts alleged in the cross-bill of defendant Walter Scott, admit that all of the facts stated in said cross-bill are true.

"It is further agreed and stipulated that the court, upon such admission, may take the case as submitted and render judgment to all and like...

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  • Knorp v. Thompson
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...Courts do not ordinarily notice judicially the records and facts in one action in deciding another and different one. Thompson v. Scott, 323 Mo. 790, 19 S.W. 2d 1063; Smith v. Berryman et al., 272 Mo. 365, 199 S.W. 165; State ex rel. St. Joseph Water Co. Eastin, 270 Mo. 193, 192 S.W. 1006; ......
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