Barber Asphalt Paving Co. v. Field

• Citation: 97 S.W. 179,132 Mo. App. 628
• Parties: BARBER ASPHALT PAVING CO. et al. v. FIELD et al.
• Decision Date: 01 October 1906
• Court: Court of Appeal of Missouri (US)

97 S.W. 179

132 Mo. App. 628

BARBER ASPHALT PAVING CO. et al. v. FIELD et al.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

Rehearing Denied November 5, 1906.

1. JUDGMENT—RES JUDICATA—GROUND NOT URGED IN FIRST ACTION.

Judgment for defendants in a suit to cancel as invalid special tax bills for street improvements, holding them valid, is res judicata in an action to enforce them, though the ground of invalidity relied on in the second action, that the board of aldermen did not cause their resolution declaring the improvement to be necessary to be published, was not presented in the first action; and this though the property owner did not then know that the board of aldermen had made no resolution directing the publication, as their records were open to inspection, and such fact could have been learned.

2. SAME—FAILURE TO FILE CROSS-BILL.

Failure of defendants, in a suit to cancel as invalid special tax bills for street improvements and remove the cloud cast thereby on the title to the lots, to file a cross-bill to foreclose the lien, does not estop them to thereafter maintain an action on the tax bills.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by the Barber Asphalt Paving Company and others against Richard H. Field and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

W. M. Williams and R. H. Field, for appellants. Scarritt, Griffith & Jones, for respondents.

JOHNSON, J.

This action was begun on January 8, 1900, to enforce four special tax bills issued by the city of Westport, a city of the fourth class, on account of the paving of Baltimore avenue. The bills were issued and delivered to plaintiff on November 20, 1897, and in December following the territory included within the corporate limits of Westport was incorporated with Kansas City by an extension of the limits of the latter city, and the corporate existence of Westport ipso facto ceased. The validity of the bills is attacked in the answer on a single ground. The laws governing cities of the fourth class in force at the time the improvement was made and during the period covered by the preliminary steps (section 95, p. 86, Sess. Acts 1895) provided that, "when the board of aldermen shall deem it necessary to pave * * * any street * * * within the limits of the city for which a special tax is to be levied as herein provided, the board of aldermen shall by resolution declare such work or improvement necessary to be done and cause such resolution to be published in the city for two consecutive weeks," etc. It is admitted the resolution declaring the improvement to be necessary was duly passed, but it is alleged in the answer that the board of aldermen did not cause it to be published. In its reply plaintiff put this defense in issue, and pleaded as an estoppel a judgment rendered in a former suit between the same parties involving the same issue. It was disclosed at the trial that defendants shortly after the tax bills were issued brought a suit in equity against plaintiff in the Circuit Court of the United States for the Western District of Missouri, the object of which was to obtain a decree canceling these and other special tax bills issued by the city of Westport for the paving of Main and Wyandotte streets, and removing the cloud cast by these bills over the title of defendants to real estate owned by them which abutted on these streets. The relief sought in that action was based on the claim that the tax bills were invalid, and five grounds were asserted in support of that claim, but the defense interposed in the present action was not included among them, nor at any time made an issue in that case. In the judgment rendered the Circuit Court sustained the validity of the tax bills issued for the paving of Main street and Baltimore avenue, but held invalid the bills issued for the paving of Wyandotte street. Field v. Barber Asphalt Paving Company (C. C.) 117 Fed. 925. Both parties appealed to the Supreme Court of the United States, where all of the bills were adjudged valid and the bill in equity was ordered dismissed. Field v. Paving Co., 194 U. S. 618, 24 Sup. Ct. 784, 48 L. Ed. 1142. In the present case the learned trial judge sustained the tax bills and entered judgment accordingly, from which defendants appealed.

Defendants admit that their right to the relief sought in the equity case depended for existence on the invalidity of the tax bills, and that the irregularity now interposed as a defense would have been a proper issue in that case had it been presented, but they endeavor to excuse their failure to litigate that issue by showing their lack of knowledge of the existence of the irregularity during the pendency of that suit. We will ignore for the present the effect of this want of knowledge on the question of res adjudicata, and first will consider that subject as being unaffected by it. So regarding it, the question falls squarely within the principles applied by the Supreme Court in the case of Donnell v. Wright, 147 Mo. 639, 49 S. W. 874. In that case the defendant in an ejectment suit brought by the holder of a tax deed had himself prosecuted an action in equity against his adversary to cancel the tax deed and remove the cloud thereof from his title, and in his petition had attacked the validity of the deed upon six different grounds. One of these he abandoned, and the remaining five constituted the issues on which the case was tried. The validity of the deed was sustained, and the holder thereof brought suit in ejectment, whereupon the defendant brought forward as a defense the ground of attack on the deed which had been abandoned in the former suit. The Supreme Court sustained the plea of res adjudicata, holding that such pleas apply, "except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time."

The close resemblance between the facts of that case and the one in hand is apparent, and the principles therein followed and applied likewise should be applied here, unless we find that the Supreme Court has repudiated them in a later decision. Such is the effect defendants claim for the decision of that court in Tootle v. Buchingham, 190 Mo. 183, 88 S. W. 619, where it is said: "It is not the doctrine in this state that every possible issue that might have been tried under the pleadings in a given case is conclusively presumed to have been tried and the matter become res adjudicata. Only the matters that were actually considered by the court are settled by the judgment. For our rulings on his point, see cases cited in the brief of respondents." The cases to which the court referred are Snorgrass v. Moore, 30 Mo. App. 232; Bell v. Hoagland, 15 Mo. 360; Hickerson v. City, 58 Mo. 61; Spradling v. Conway, 51 Mo. 51; Garrett v. Greenwell, 92 Mo. 120, 4 S. W. 441; Baldwin v. Davidson, 139 Mo. 118, 40 S. W. 765, 61 Am. St. Rep. 460. The principle followed in those cases is well expressed in this quotation from the opinion in Garrett v. Greenwell, supra: "A judgment in order to be a bar to further litigation must not have been rendered on some mere preliminary ground, as, e. g., upon a plea in abatement or the like. The case must have gone to a full and complete termination so that nothing is left unsettled as to the rights of the parties litigant, or the extent of those rights. In a word, the judgment must have been final and rendered on the merits of the cause. Bigelow on Estoppel (3d Ed.) 29, 32, 33; Freeman on Judgments (3d Ed.) § 260. This, as will be seen from the authorities, is elementary law." In the Tootle Case the judgment pleaded as an estoppel had been rendered in Kansas in an action brought by the agent of Tootle, Lemon & Co., in his own name, who, as the holder for collection of promissory notes belonging to his principals, sued in replevin to recover possession...