Barber Asphalt Pav. Co. v. Young

• Decision Date: 29 April 1902
• Citation: 68 S.W. 107,94 Mo. App. 204
• Parties: BARBER ASPHALT PAV. CO. v. YOUNG et al.
• Court: Missouri Court of Appeals

68 S.W. 107

94 Mo. App. 204

BARBER ASPHALT PAV. CO. v. YOUNG et al.

Court of Appeals of St. Louis, Missouri.

April 29, 1902.

MUNICIPAL CORPORATIONS — SPECIAL ASSESSMENT — TAX BILL — ACTION TO ENFORCE — SALE OF PROPERTY — RIGHTS OF PURCHASER — PARTIES — WAIVER.

1. Under Rev. St. 1899, § 602, providing that a ground of demurrer not appearing on the face of the petition may be taken advantage of by answer, and will be waived if not so taken, unless the defect goes to the jurisdiction of the court over the subject-matter, the failure to object by answer or demurrer that suit is not brought in the name of the proper party plaintiff is a waiver of such objection.

2. When the title to real estate stands in the name of a wife, she may properly intervene in an action to enforce a special assessment tax bill against the land, and move to have the judgment granting such relief set aside, though the consideration for the land was paid by the husband.

3. St. Louis City Charter, art. 6, § 26, provides that a special assessment tax bill shall not be a lien on the property charged with its payment after two years, unless suit for its enforcement is pending. Real estate belonging to an attorney, which was subject to a tax bill issued in 1893, was sold by the attorney in 1896. The record in a suit to enforce the bill in which the attorney was a party and appeared for himself showed that a demurrer had been sustained to the petition and final judgment, on plaintiff's refusal to amend, for defendant, from which no appeal or writ of error had been taken. Held, that a judgment subjecting such property to the payment of the bill, subsequently entered on a stipulation of the attorney, filed after he had sold the property, was not binding on the interest of the vendee therein.

4. A judgment foreclosing a special assessment tax bill entered on the stipulation of the owner, who is an attorney, in a suit against the owner and mortgagees of the property, is not binding on mortgagees who are not represented by the attorney.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action to enforce a tax bill by the Barber Asphalt Paving Company against Alexander Young and others. Judgment was rendered for plaintiff, and from an order setting the judgment aside on the petition of Mary E. Gaebler the plaintiff appeals. Affirmed.

Adiel Sherwood, for appellant. Wm. M. Kinsey, for respondents.

BLAND, P. J.

Defendant Alexander Young in 1893 was the owner in fee of three parcels of real estate in the city of St. Louis incumbered by deeds of trust. Three special tax bills for street improvements were issued by the city authorities of the city of St. Louis to the Barber Asphalt Company against each of the three parcels of real estate owned by said Young. The tax bills were dated on July 3, 1893. Suits were commenced to enforce the special lien of these several tax bills in the circuit court of the city of St. Louis on June 25, 1895, against Alexander Young and the mortgagees. These suits were numbered respectively 157, 159, and 160. The defendants were duly served with process of summons. Alexander Young, who is an attorney at law, filed in each of said suits a general demurrer to the several petitions filed therein, and signed the said demurrers as attorney for himself and the other defendants. The demurrers were sustained by the court, and plaintiff's counsel took leave to file amended petitions in 20 days thereafter. After the expiration of this leave plaintiff declined to amend its petitions, and final judgment was rendered in each of said causes on the demurrers. These judgments were rendered in the month of April, 1896. Case No. 157 was appealed to this court, where the judgment of the circuit court was reversed, and the same remanded. It has since gone to final judgment in favor of the plaintiff. No steps were taken to appeal Nos. 159 and 160, and no writs of error were ever sued out in either of said causes. After the judgment in No. 157 had been reversed and remanded, there was pending in the supreme court a cause wherein the Barber Asphalt Paving Company was plaintiff and Morris Hezel and others were defendants (56 S. W. 448), involving the validity of the ordinances of the city of St. Louis in respect to special tax bills for street improvements. The validity of the tax bills in cases Nos. 157, 159, and 160 depended upon the final decision of the Hezel Case. Early in February, 1897, Adiel Sherwood, Esq., acting for the plaintiff, and Alexander Young, acting for himself and as attorney for defendants, entered into the following stipulation: "State of Missouri, City of St. Louis — ss.: In the Circuit Court, February Term, 1897. The Barber Asphalt Paving Co., Plaintiff, v. Alexander Young et al., Defendants. No. 160, Room 7. The Barber Asphalt Paving Co., Plaintiff, v. Alexander Young et al., Defendants. No. 159, Room 6. The Barber Asphalt Paving Co., Plaintiff, v. Alexander Young et al., Defendants. No. 157, Room 6. Stipulation: By the consent and agreement of plaintiff and all of the defendants the final judgment heretofore entered against plaintiff is set aside in cases No. 159, in room 6, and No. 160, in room 7, and they are reinstated upon the docket with the same force and effect as if final judgment therein had never been rendered; in other words, these cases shall stand for trial, and it is stipulated and agreed that the defendants shall have leave to withdraw their demurrer in the two cases mentioned, and also in No. 157, in room 6, heretofore filed therein, and to answer, and thereafter plaintiff may reply; and then it is stipulated and agreed by and between plaintiff and defendants in all of said cases as follows: (1) The case of the Barber Asphalt Paving Co. v. Morris Hezel et al., No. 508, in court room No. 5, shall be prosecuted and tried as a test case, and all of the cases above named shall abide the final decree which shall be rendered in that case upon plaintiff's cause of action and upon defendants' answer and cross bill and plaintiff's reply, whether final in the court of first instance without appeal or final in pursuance of or by the terms of a final decree of any appellate court before which it shall have been carried for review. (2) Whenever such final decree shall have been entered in said test case, then a similar and corresponding decree, varied only as the names of the parties, facts, and figures stated in the pleadings shall differ, shall be entered in each of the other of said cases, and there shall be no appeal or writ of error sued out from any such final decree so entered in such other cases. (3) The plaintiff will prosecute the said test case in the St. Louis circuit court with due diligence, and, if either party shall wish to have any finding and decree rendered in said case in said circuit court reviewed in any appellate court having jurisdiction thereof, such party will promptly prosecute an appeal from such finding and decree, and failure to take such appeal according to law shall be held to be a waiver of any right to have such finding and decree reviewed by any appellate court, and the party so failing to take an appeal according to law shall be estopped from suing out any writ of error in said case or in any...