74 S.W.2d 81 (Mo.App. 1934), Riverview State Bank v. Courtney

Citation74 S.W.2d 81, 229 Mo.App. 111
Opinion JudgeTRIMBLE, J.
Party NameTHE RIVERVIEW STATE BANK, RESPONDENT, v. ELIZABETH M. COURTNEY, APPELLANT
AttorneyWill H. Hargus and Clarence S. Palmer for respondent. O. H. Swearingen for appellant.
Case DateMay 24, 1934
CourtCourt of Appeal of Missouri (US)

Page 81

74 S.W.2d 81 (Mo.App. 1934)

229 Mo.App. 111

THE RIVERVIEW STATE BANK, RESPONDENT,

v.

ELIZABETH M. COURTNEY, APPELLANT

Court of Appeals of Missouri, Kansas City

May 24, 1934

Appeal from Circuit Court of Cass County.--Hon. Leslie A. Bruce, Judge.

AFFIRMED IN SUBSTANCE BUT REMANDED (with directions).

Will H. Hargus and Clarence S. Palmer for respondent.

O. H. Swearingen for appellant.

OPINION

Page 82

[229 Mo.App. 112] TRIMBLE, J.

This is a suit on an installment special tax bill issued by the city of Pleasant Hill, Missouri, No. 25, dated October 5, 1926, in part payment of the cost of paving the roadway of First Street in said city from the center line of Wyoming Street to the center line of Commercial Street, to the amount of $ 134.80 on the West half of Lot 2, Block G, Pacific Railroad Addition, Pleasant Hill, Missouri.

The petition alleges that the work was done in accordance with the provisions of a city ordinance No. 507, approved August 3, 1926; that after the work was done, the cost was computed and apportioned against the lots, exclusive of improvements, abutting on said street, in proportion to the front foot, and same was reported to the city council and the respective amounts of said apportionments were levied and assessed against each lot abutting on said street. The said special tax bill, with the seal of said city affixed, was filed with the petition as Exhibit A;

That said special tax bill was duly assigned by the contractor to whom it was issued, to plaintiff for a valuable consideration prior to the bringing of the suit;

That the above described real estate is legally chargeable in favor of plaintiff, on account of its proportionate cost of the work with the said sum of $ 134.80 with eight per cent interest from November 4, 1926; that plaintiff is the legal owner and holder of said special tax bill; that defendant owns or claims to own the said land, but same is subject and subordinate to the rights of plaintiff under the said special tax bill, wherefore, special judgment was prayed for $ 134.80 with interest and for the enforcement of the lien against the land and for costs.

The answer admitted that defendant was the owner of the land in question, but denied everything else.

The answer then set up that plaintiff is without legal capacity to sue, as any suit to recover for special taxes assessed by said city, and especially for the tax bill in plaintiff's petition, must be brought in the name of said city and not otherwise;

Page 83

That no such ordinance as mentioned in said petition was ever passed or is of record in the proceedings of the council of said city;

That the action of the city council, in causing First Street, mentioned in the petition to be paved, for which the tax bill in said petition is alleged to have been issued was "arbitrary, fraudulent and oppressive and for that reason said tax bill is void;"

That within the time prescribed by law, a majority of the resident owners of the real estate confronting and abutting on said First [229 Mo.App. 113] Street signed and filed with the city clerk a written remonstrance against the proposed paving of said First Street, wherefore, the power of the council to order said paving ceased;

That the city council was without jurisdiction to act in the matter to pass said ordinance or to issue said tax bill because a majority of the resident owners of real estate abutting upon said First Street and required to pay for such proposed paving, filed in due time and with the proper city officials a written remonstrance against the same;

That at the city council meeting August 3, 1926, at which the ordinance alleged to have provided for the paving of said First Street, for which the tax bill was issued, and at the opening of said meeting, the mayor, presiding officer, announced that a sufficient protest had been filed against the paving of said street, and directed the check theretofore deposited by the contractor as a guarantee to carry out any contract that might be let to him, to be returned to him, and "the city clerk left the city council meeting and went after said check, and that thereupon this defendant and her agents and representatives left said council meeting with the understanding and belief that no further action would be taken in said matter at said meeting;"

That no proper estimate of the cost was ever filed with the city council after the contract was let, as is required by law;

That the amount of said tax bill is excessive, in that it contains an amount for attorney's fees, engineer's work, cleaning, grading the street and putting in curbing;

That the resident property owners abutting on said First Street were fraudulently procured to sign a petition for the paving of said First Street by promises made by and on behalf of said contractor to the effect that the total cost to...

To continue reading

Request your trial
4 practice notes
  • 173 S.W.2d 76 (Mo. 1943), 38285, O'Brien v. Vandalia Bus Lines
    • United States
    • Missouri United States State Supreme Court of Missouri
    • July 6, 1943
    ...Hulsey v. Tower Grove Quarry, 326 Mo. 194, 30 S.W.2d 1018; Lindsay v. Kansas City, 195 Mo. 166, 93 S.W. 273; Riverview Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (6) If a limitation was necessary for the enlightenment of the jury, it was defendant's duty to request the giving of a fur......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (3) The third extension agreement not only withdrew from the second extension agreement front foot ownership necessary to giv......
  • 317 So.2d 232 (La.App. 3 Cir. 1975), 5086, City of Lafayette v. Marks Const. Co., Inc.
    • United States
    • Louisiana Court of Appeal of Louisiana (US)
    • July 30, 1975
    ...provision without starting the running of the statute of limitations.' 179 S.E. 461. Also see Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81 (1934). Therefore, we conclude that the exception of prescription was erroneously sustained and that it should have been overruled. W......
  • 308 S.W.2d 333 (Mo.App. 1957), 29779, State v. Kaufman
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • December 19, 1957
    ...of a line of credit. State v. Richman, 347 Mo. 595, 148 S.W.2d 796; State v. Felman, Mo.App., 50 S.W.2d 683; State v. Humphrey, Mo.App., 74 S.W.2d 86. However, in none of the aforesaid cases did the showing of overdrafts form the basis of the court's ultimate ruling. In the Richman case the......
4 cases
  • 173 S.W.2d 76 (Mo. 1943), 38285, O'Brien v. Vandalia Bus Lines
    • United States
    • Missouri United States State Supreme Court of Missouri
    • July 6, 1943
    ...Hulsey v. Tower Grove Quarry, 326 Mo. 194, 30 S.W.2d 1018; Lindsay v. Kansas City, 195 Mo. 166, 93 S.W. 273; Riverview Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (6) If a limitation was necessary for the enlightenment of the jury, it was defendant's duty to request the giving of a fur......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (3) The third extension agreement not only withdrew from the second extension agreement front foot ownership necessary to giv......
  • 317 So.2d 232 (La.App. 3 Cir. 1975), 5086, City of Lafayette v. Marks Const. Co., Inc.
    • United States
    • Louisiana Court of Appeal of Louisiana (US)
    • July 30, 1975
    ...provision without starting the running of the statute of limitations.' 179 S.E. 461. Also see Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81 (1934). Therefore, we conclude that the exception of prescription was erroneously sustained and that it should have been overruled. W......
  • 308 S.W.2d 333 (Mo.App. 1957), 29779, State v. Kaufman
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • December 19, 1957
    ...of a line of credit. State v. Richman, 347 Mo. 595, 148 S.W.2d 796; State v. Felman, Mo.App., 50 S.W.2d 683; State v. Humphrey, Mo.App., 74 S.W.2d 86. However, in none of the aforesaid cases did the showing of overdrafts form the basis of the court's ultimate ruling. In the Richman case the......