Associated Holding Co. v. W.B. Kelley & Co., 18434.

• Decision Date: 06 January 1936
• Docket Number: No. 18434.,18434.
• Court: Missouri Court of Appeals
• Parties: ASSOCIATED HOLDING COMPANY, RESPONDENT, v. W.B. KELLEY & CO. ET AL., DEFENDANTS, CITY OF ST. JOSEPH, APPELLANT.

90 S.W.2d 419

ASSOCIATED HOLDING COMPANY, RESPONDENT, v. W.B. KELLEY & CO. ET AL., DEFENDANTS, CITY OF ST. JOSEPH, APPELLANT.

No. 18434.

Kansas City Court of Appeals. Missouri.

January 6, 1936.

Appeal from Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.

REVERSED.

Kranitz & Duncan for respondent.

Wm. M. Morton for defendant Fairleigh Realty Co.

John S. Boyer, Richard S. Duncan and Francis A. Pickle for appellant.

REYNOLDS, C.

This is a suit by plaintiff on two special tax bills numbered respectively 59664 and 59679, issued by the city of St. Joseph under date of April 22, 1929, against the properties therein described for street improvement, in which the Fairleigh Realty Company, W.B. Kelley & Company, the city of St. Joseph, the Prescott, Wright, Snider Company, a corporation, and the Hesse-Rix Company, a corporation, were originally made defendants, Afterward, Milton S. Gray and Eda Milne Gray were, upon their application, made parties defendant.

The tax bill No. 59664 was issued for the sum of $363.01, and the tax bill No. 59679 was issued for the sum of $1527.35, and each bore interest from date if not paid within thirty days after date as required by law.

The petition is in two counts and is, omitting caption and signatures, as follows:

"COUNT 1.

"Plaintiff for its first cause of action states that the defendants hereinabove named are the owners of or claim some interest in the following described property: The West Two Hundred Forty (240) feet of Park No. 1 in Fairleigh Place, an addition to the City of St. Joseph, Missouri; that at all times herein mentioned the City of St. Joseph was a municipal corporation existing under the laws of the State of Missouri as a city of the first class and that Ray Dunlap was the City Engineer of said city; that said property is subject to a special tax for the paving of Frederick Avenue from the East line of Twenty-sixth Street to the West line of Noyes Blvd. as defined in Special Ordinance of the City of St. Joseph, No. 11052, approved January 21, 1929, and that said special tax bill No. 59664 dated April 22, 1929, was duly issued to the Consolidated Paving & Material Company from whom plaintiff is the lawful assignee for value and which said tax bill is marked Exhibit `A' hereto attached and made a part of this petition; that said property is legally charged with the total sum of Three Hundred Sixty-three Dollars One Cent ($363.01) which said sum with interest at the rate of eight (8) per cent per annum from the date of said bill is now due and payable and has not been paid.

"Wherefore, plaintiff prays judgment for the total sum of Three Hundred Sixty-three Dollars One Cent ($363.01) with interest at the rate of eight (8) per cent per annum from the date of said bill and that the same be declared a special lien upon said lot and that said lien and all right, title and interest of the defendants in said property be foreclosed and that it have special execution therefor.

"Plaintiff further prays that the court declare said judgment to be a general judgment against defendant, City of St. Joseph, to be collected in like manner as other judgments against said city, in addition to the lien of said tax bill against the property hereinabove set out.

"COUNT 2.

"Plaintiff for its second cause of action states that the defendants hereinabove named are the owners of or claim some interest in the following described property: The East Two Hundred Ninety (290) feet of Park No. 1 in Fairleigh Place, an addition to the City of St. Joseph, Missouri; that at all times herein mentioned the City of St. Joseph was a municipal corporation existing under the laws of the State of Missouri as a city of the first class and that Ray Dunlap was the City Engineer of said city; that said property is subject to a special tax for the paving of Frederick Avenue from the East Line of Twenty-sixth Street to the West line of Noyes Blvd. as defined in Special Ordinance of the City of St. Joseph, No. 11052, approved January 21, 1929, and that said special tax bill No. 59679 dated April 22, 1929, was duly issued to the Consolidated Paving & Material Company from whom plaintiff is the lawful assignee for value and which said tax bill is marked `Exhibit B' hereto attached and made a part of this petition; that said property is legally charged with the total sum of One Thousand Five Hundred Twenty-seven Dollars Thirty-five Cents ($1527.35) which said sum with interest at the rate of eight (8) per cent per annum from the date of said bill is now due and payable and has not been paid.

"Wherefore, plaintiff prays judgment for the total sum of One Thousand Five Hundred Twenty-seven Dollars Thirty-five Cents ($1527.35) with interest at the rate of eight (8) per cent per annum from the date of said bill and that the sale be declared a special lien upon said lot and that said lien and all right, title and interest of the defendants in said property be foreclosed and that it have special execution therefor.

"Plaintiff further prays that the Court declare said judgment to be a general judgment against defendant, City of St. Joseph, to be collected in like manner as other judgments against said city, in addition to the lien of said tax bill against the property hereinabove set out."

The defendant city filed a demurrer to the petition and thereafter its separate answer in which it is admitted that the city of St. Joseph is a city of the first class; that Ray Dunlap was the city engineer of said city; and that the special tax bills described in the respective counts of the petition were issued to the Consolidated Paving & Material Company and by it assigned to the plaintiff. All other allegations of the petition were denied. For further answer, the city alleged that it was without knowledge as to whether the other defendants were the owners of or made claim to any interest in the properties described in the petition but, for itself, denied that it had any claim to or interest in said properties and denied that it had any right, title, or ownership in or to said properties or any part thereof.

The defendant Fairleigh Realty Company and the defendants Milton S. Gray and Eda Milne Gray also filed separate answers, which it is unnecessary to set out here other than to state that defendant Fairleigh Realty Company denied in its answer that it was the owner of any of the properties described in the petition or that it made any claim thereto and denied any liability for the payment of the tax bills sued on. All defendants other than the defendant city of St. Joseph, the Fairleigh Realty Company, and Milton S. Gray and Eda Milne Gray were, during the progress of the trial and prior to the submission of the cause, dismissed from the record by the plaintiff.

The case proceeded to trial before the court without a jury on the pleadings above mentioned. The plaintiff offered in evidence the tax bills marked "A" and "B" (Exhibit A being tax bill No. 59644, made "chargeable to W240' Park, Lot ____ in Block 1 in ____ Addition to said City" and Exhibit B being tax bill No. 59679, made "chargeable to E290' Park, Lot ____ in Block 1 in ____ Addition to said City") and rested its case.

The defendant city thereupon requested a declaration of law marked "A" to the effect that plaintiff is not entitled under the pleadings and the evidence to a general judgment against the city on either count of the petition. Such declaration was refused, and no evidence was offered by the defendant city. Evidence was thereafter offered by the defendants Fairleigh Realty Company and the answering defendants Gray tending to support the defenses set up in their respective answers. It is not necessary to set out such evidence at this point; but, if occasion so requires, it will be fully set out in the further course of the opinion. There also appear in the record certain admissions of fact agreed upon by all of the parties, which it is unnecessary here to set out.

At the close of the evidence, the court made a finding that, under Count 1 of the petition, special tax bill No. 59644 sued upon "was assessed against the property known and described as the west two hundred forty (240) feet of Park One (1) in Fairleigh Place, an addition to the City of St. Joseph, Buchanan County, Missouri," and, under Count 2, that special tax bill No. 59679 "was assessed against property known and described as the east two hundred ninety (290) feet of Park One (1) in Fairleigh Place, an addition to the City of St. Joseph, Buchanan County, Missouri;" that, at the time of the improvement for which the tax bills were issued and to the present time, the defendant city of St. Joseph owned and still is the legal owner and holder of the title to the real estate described in the petition in fee simple absolute; and that the defendant Fairleigh Realty Company had and has no right, title, or interest in or to said real estate. It...