City of St. Louis v. Annex Realty Co.

• Decision Date: 27 May 1903
• Citation: 74 S.W. 961,175 Mo. 63
• Parties: CITY OF ST. LOUIS v. ANNEX REALTY CO. et al.
• Court: Missouri Supreme Court

74 S.W. 961

175 Mo. 63

CITY OF ST. LOUIS v. ANNEX REALTY CO. et al.

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

MUNICIPAL CORPORATIONS — WIDENING STREETS—CONDEMNATION SUIT—LIMITATIONS —PROCEEDING TO ENFORCE—PAYMENT OF BENEFITS—DEFENSES—APPEAL.

1. A judgment in a condemnation case to open or widen a street, by which special benefits were assessed against property within the benefit district, was barred only by the ten-year statute of limitations.

2. A defense not made in the circuit court, or called to its attention by the answer or in the motion for a new trial, is not open to review in the Supreme Court.

3. Where a judgment in a condemnation suit by a city to widen a street was not appealed from by defendant, a property holder, it could not avail itself, in a proceeding to enforce payment of the benefits assessed against the property by such judgment, of the defense that the judgment did not assess any benefits to the public

against the city, as such objections did not go to the validity or regularity of the judgment.

Appeal from St. Louis Circuit Court; S. P. Spencer, Judge.

Proceeding by the city of St. Louis against the Annex Realty Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Wm. F. Smith, for appellants. Chas. W. Bates and Alex Nicholson, for respondent.

MARSHALL, J.

This is a proceeding to enforce the payment of certain benefits assessed against lots 21 to 25, inclusive, of city block 2954, in a condemnation suit heretofore prosecuted to a final judgment by the city to widen Iron street from Michigan avenue to Grand avenue, under Ordinance 16,758. The defendant the Annex Realty Company owns the fee, which is subject to a deed of trust that is held by the other defendants. The condemnation case was begun on November 14, 1892, the several steps and proceedings taken and had therein were strictly in conformity to the requirements of the law, and the judgment therein on February 6, 1894, was regular and legal on its face. The defendants did not pay the benefits that were assessed against their said lots by that judgment, and thereupon, on July 10, 1900, the city instituted this proceeding. The petition is in five counts, and is quite lengthy, setting out each step that was taken in the condemnation case. The answer admits that the city is a municipal corporation, and that it is vested with full power, as alleged in the petition, to open and establish public highways, but denies each and every other allegation of the petition, and denies that the plaintiff is entitled to any judgment. The answer then pleads that this proceeding is barred by the five-year statute of limitations (being section 6775, Rev. St. 1889, now section 4273, Rev. St. 1899). The case was tried by the court, a jury being waived, and resulted in a judgment for the plaintiff. The bill of exceptions recites that the plaintiff introduced evidence sustaining all of the allegations of fact contained in the petition, among which was the report of the commissioners, which showed that there was no assessment for benefits to the public generally made against the city of St. Louis, and that the defendant declined to introduce any testimony. From the judgment, the defendants appeal.

1. The judgment of the circuit court in this case was rendered prior to the decision of this...