Kansas City v. Field

• Decision Date: 16 March 1917
• Docket Number: No. 18229.,18229.
• Citation: 270 Mo. 500,194 S.W. 39
• Parties: KANSAS CITY v. FIELD.
• Court: Missouri Supreme Court

194 S.W. 39

270 Mo. 500

KANSAS CITY v. FIELD.

No. 18229.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Motion for Rehearing Denied March 30, 1917.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Condemnation proceedings and proceedings to assess benefits by Kansas City, wherein Richard H. Field, against whose lands an assessment of benefits was made, moved to quash an execution. From refusal to quash, movant appeals. Reversed and remanded, with direction to sustain the motion to quash.

Gage, Ladd & Small and R. H. Field, all of Kansas City, for appellant. J. A. Harzfeld, Jay M. Lee, Delbert J. Haff, Edwin C. Meservey, and Charles W. German, all of Kansas City (William C. Michaels, of Kansas City, of counsel), for respondent.

FARIS, J.

This is an appeal from the circuit court of Jackson county, wherein upon motion to that end, the court refused to quash an execution which had been levied upon the land of movant, who is appellant here.

On the 19th day of June, 1900, as the result of a certain proceeding to condemn lands for a park to be known as West Terrace Park, and to assess benefits to produce a fund to recoup the city for its outlay in payment for the condemned lands, judgment was rendered, among others, against the lands of movant. Movant did not appeal from the latter judgment, but one Catherine Mulkey appealed on her part from the judgment assessing benefits against her land, which appeal was decided against her by this court on the 30th day of June, 1903. See Kansas City v. Mulkey, 176 Mo. 229, 75 S. W. 973. Mandate was issued by this court in the last-mentioned appeal on the 11th day of July, 1903. The execution herein sought to be quashed was issued on the 12th day of July, 1913. The mandate from this court was filed in the circuit court of Jackson county on the 13th day of July, 1903. The motion to quash the execution filed by movant, so far as it is pertinent, is, caption and signature of counsel omitted, as follows:

"Now, on this 30th day of July, 1913, comes Richard H. Field, and states and shows to the court:

"(1) That he is, and was at the times hereinafter named, the owner of the following described real estate in Kansas City, Jackson county, Mo., to wit: The west 52 feet of the south 16 feet of lot No. 13 and the west 52 feet of lot No. 14, Coffman's addition.

"(2) That, on July 12, 1913, the clerk of the circuit court of Jackson county, Mo., issued and delivered to the sheriff of said county an execution of that date on a judgment of said circuit court at Kansas City, in the above-entitled cause, dated and rendered June 19, 1900, for $92.83 against the above-described real estate, and also for other sums against other lots and parcels of real estate in said city described in said execution in which said Richard H. Field was and is in no wise interested or concerned.

"(3) That said execution or the record in the case does not show that said execution was issued on a live judgment, or that the clerk of said court had any right or authority to issue said execution against the said real estate of the maker of this motion.

"(4) That said execution was issued after the expiration of 10 years from June 19, 1900, the date of the original rendition of said judgment; and said judgment had not been revived, and no payment had been made on said judgment against the above-described real estate at any time within 10 years before July 12, 1913, the date of said execution.

"Wherefore the said Richard H. Field moves the court to quash said execution as to his said real estate above described, and for judgment for costs hereon."

In passing upon this motion the learned court nisi made a special finding of facts which will serve to make clear the ruling facts of the case. This special finding of facts is as follows:

"I. That Richard H. Field is and was the owner of the land described in his motion filed in this cause to quash the execution issued herein.

"II. That on July 12, 1913, the clerk of the circuit court of Jackson county, Mo., issued and delivered to the sheriff of said county an execution of that date on the judgment of this court in this case, dated and rendered June 19, 1900, for $92.83, against the said described real estate, and also for other sums against other lots and parcels of real estate in said city, described in said execution, in which said Richard H. Field was and is in no wise interested or concerned.

"III. That said execution was issued after the expiration of ten years from June 19, 1900, the date of the original rendition of said judgment, and that said judgment had not been revived, and that no payment had been made on said judgment against the said described real estate of Richard H. Field at any time within 10 years before July 12, 1913, the date of said execution.

"IV. The court further finds that this cause was appealed by certain parties to the Supreme Court of Missouri, which court affirmed the judgment of the circuit court on June 30, 1903, and the mandate of the said Supreme Court, dated July 11, 1903, was filed with the clerk of the circuit court of Jackson county, Mo., at Kansas City, Mo., on July 13, 1903.

"Thereupon the court, being fully advised in the premises, overrules the said motion of Richard H. Field, to which ruling of the court the said Richard H. Field excepts."

If facts in addition to the above are found necessary to make clear what we find it necessary to say, we will set them out in the opinion infra.

I. The briefs are able and extremely voluminous, covering not only the points which seem to control the case, but also many interesting points afield. However, the two points, decision of which seems to settle the case, are these: (a) Does the general statute of limitations so far bar a judgment such as that here as to forbid after 10 years the issuance of an execution thereon; and (b) did the appeal of Catherine Mulkey have the effect to extend the time, or toll the statute for the period that such appeal was pending here? For convenience we sometimes refer to section 1912, infra, as a statute of limitations. Whether it be so, or merely the concrete statement of a rule of evidence, we do not decide.

That an execution may not issue upon an ordinary judgment after ten years is well-settled. For the following statute so ordains, to wit:

"Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order, or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever." Section 1912, R. S. 1909.

Another general statute cited and urged by movant as apposite, reads thus:

"Executions may issue upon a judgment at any time within ten years after the rendition of such judgment." Section 2133, R. S. 1909.

It is urged, however, by respondent that neither of the above statutes is applicable, but that the matter is controlled by an alleged applicable provision of the charter of Kansas City, which in full reads thus:

"After the judgment of confirmation of such verdict and proceedings, the clerk of said court shall certify under the seal of said court, to two copies of said verdict, one of which copies he shall deliver to the city treasurer and one to the city auditor, and said assessments for benefits, if any, against private property shall be a lien from the date of the taking effect of the ordinance in pursuance of which said assessments are made and said proceedings instituted, and shall attach to the several lots or parcels of land so assessed with benefits as aforesaid; and said lien shall continue against each lot or parcel assessed until the assessment against such lot or parcel has been paid or collected in full, both principal and interest. No assessment shall be defeated or affected by any irregularity affecting any other assessment or from the rendering of any other assessment invalid in whole or in part." Section 20, Art. X, Charter, Kansas City. We have italicized the particular part of the section supra, upon which respondent relies.

Does this charter provision so far control as that execution may issue after 10 years? Passing for the present the obvious query whether the language of the charter quoted supra carries inevitably, the meaning which respondent puts on it, we do not think the provision even as construed by respondent has the effect claimed for it. It is self-evident that since Kansas City is in Jackson county and therefore an integral component of the state of Missouri, the general laws of the state run there, and will control unless the Constitution or other laws passed pursuant thereto have abdicated this right of control. If this right of control has been delegated, it comes from the below quoted pertinent provisions of our statutes. Appositely pertinent parts of section 9703, following the Constitution itself (Const. § 16, art. 9) provide:

"Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, by causing a board of thirteen freeholders, who shall have been for at least five years qualified voters thereof, to be elected by the qualified voters of such city...