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

• Citation: 81 S.W.2d 624,336 Mo. 851
• Parties: Associated Holding Company v. W. B. Kelley & Company et al., City of St. Joseph, Appellant
• Decision Date: 17 April 1935
• Court: Missouri Supreme Court

81 S.W.2d 624

336 Mo. 851

Associated Holding Company v. W. B. Kelley & Company et al., City of St. Joseph, Appellant

Supreme Court of Missouri

April 17, 1935

Certified to Kansas City Court of Appeals.

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

(1) On the face of the record the judgment should have been for defendant city because the petition fails to state any facts constituting any liability against the city for a money judgment on account of the tax bills mentioned in the petition. It does not contain any plain and concise statement of facts constituting any cause of action against the city and does not inform the city of any issue to be tried which would establish its liability. Sec. 764, R. S. 1929. The nature of the cause of action and the sufficiency of the petition is determined by the facts constitutive of the cause of action stated in the petition and the prayer for relief performs no function in reference to the statement of the cause of action. State ex rel. v. Horton Land & Lumber Co., 161 Mo. 664; Caldwell v. Eubanks, 30 S.W.2d 976, 326 Mo. 185. A petition failing to plead ultimate facts necessary to establish a cause of action fails to state facts constituting a cause of action. Rositzky v Rositzky, 46 S.W.2d 595, 329 Mo. 662. (2) The judgment is not responsive to any cause of action alleged in the petition or issues tendered thereby, but is based upon a finding of a liability and upon a cause of action not alleged in the petition and plaintiff is permitted to recover upon grounds of liability not pleaded. The judgment is coram non justice and therefore void. Hecker v. Bleisch, 3 S.W.2d 1019.

Wm. M Morton for Fairleigh Realty Company.

The judgment rendered by the lower court being in favor of plaintiff and against the city of St. Joseph, one of the codefendants, and the plaintiff not appealing, such judgment became final as to the codefendant, Fairleigh Realty Company, and on appeal by the city St. Joseph the rights of the defendant, Fairleigh Realty Company, cannot be affected by the decision of this court. Fagan v. Long, 30 Mo. 222; Urton v. Sherlock, 61 Mo. 257; Gray v. Dryden, 79 Mo. 106; Peoples Bank of Glasgow v. Yager, 329 Mo. 767, 46 S.W.2d 585; Smith v. Anglo-California Trust Co., 271 P. 902; 4 C. J. 1114; 2 R. C. L., p. 67, sec. 49, p. 267, sec. 218.

Kranitz & Duncan for Associated Holding Company.

(1) The petition being declared sufficient by statute and the remedy fixed by statute, the appellant is liable in either of two instances, viz.: if it owns the property in fee simple absolute, or in case of improvement alongside a public square or other place held for public use other than streets, etc., it is by virtue of the remedy afforded by statute that a general judgment is rendered against the city in such instances in lieu of a special lien against the city's property. This for the city's benefit. Sec. 6298, R. S. 1929. (2) The fact that the trial court might have made the wrong finding on which to apply the statutory remedy or made a finding that was unnecessary, is not grounds for reversal of the judgment, provided the judgment is for the right parties. City of Moberly, etc., v. Hogan, 131 Mo. 14, 32 S.W. 1014; Hunter v. K. C. Safe, etc., 158 Mo. 262, 58 S.W. 1053; In re Lankford's Estate, 197 S.W. 147; Brook v. Barker, 228 S.W. 805.

OPINION

Coles, J.

This action was instituted in the Circuit Court of Buchanan County, Missouri, by respondent against Fairleigh Realty Company, the city of St. Joseph, Missouri, and other defendants upon two special tax bills alleged to have been duly issued for the paving of Frederick Avenue in said city. Appellant's petition prayed judgment for the amount of the special tax bills, with interest, and "that the same be declared a special lien" upon the property therein mentioned "and that said lien and all right, title and interest of the defendants in said property be foreclosed and that it have execution therefor;" and further prayed "that the court declared 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 herein-above set out." The defendant Fairleigh Realty Company filed its separate answer to the petition in which it admitted that the defendant city of St. Joseph is interested in the real estate described in plaintiff's petition and denied each and every other allegation therein contained, and specifically denied that it was the owner or had any interest in the property mentioned in the petition and alleged, in substance, that the defendant city of St. Joseph acquired the legal title to the real estate described in the petition by virtue of a dedication thereof made by the Realty Company and also set up certain acts of the city which it was averred constituted an acceptance by the city of the alleged dedication. The appellant city of St. Joseph filed an answer to the petition in which it denied each and every allegation of the petition except those therein expressly admitted. The answer admitted that it is a municipal corporation existing under the laws of the State of Missouri as a city of the first class; and that the special tax bills described in the respective counts of the petition were issued to Consolidated Paving & Material Company and by said company assigned to the plaintiff, and further specifically denied that it "has any claim to or interest in" the property in question and "disclaims any right, title or ownership in or to said property or any part thereof."

The case was tried in the court below without a jury. The trial court found that the tax bills sued upon were respectively a charge upon certain described property and further found that "at the time of the improvement and up to the present time defendant city of St. Joseph owned and still is the legal holder and owner of said real estate in fee simple absolute;" that defendant Fairleigh Realty Company "has no right, title or interest in or to said real estate herein described and is not the legal owner thereof." Thereupon, the court below entered a general judgment in favor of plaintiff and against the defendant city of St. Joseph upon both counts of the petition the aggregate amount of the judgment, with...