Barrie v. Ranson

• Decision Date: 01 February 1932
• Parties: ROBERT BARRIE, RESPONDENT, v. JOHN R. RANSON ET AL., APPELLANTS
• Court: Kansas Court of Appeals

46 S.W.2d 186

226 Mo.App. 554

ROBERT BARRIE, RESPONDENT, v. JOHN R. RANSON ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

February 1, 1932

Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.

REVERSED AND REMANDED.

Reversed and remanded.

W. O Thomas and R. J. Ingraham for appellants.

John C Loos for respondent.

OPINION

TRIMBLE, P. J.

Suit on a special tax bill, dated November 15, 1920, issued by Kansas City in part payment of the cost of construction of district sewers in Sewer District 474, in Sewer Division No. 5, in Kansas City, Missouri.

After return of the summons to answer the petition, the defendants appeared and filed a general denial. The case came on for trial where the defendants objected "to the introduction of any testimony for the reason that the petition did not state facts sufficient to constitute a cause of action." The objection was overruled and the ruling was excepted to. At the close of the case defendants prayed an instruction requiring the court (which heard the case) to find for the defendants. This the court refused, and proceeded to render judgment against defendants for the sum of $ 6287.98, with interest at eight per cent per annum and to enforce it as a special first lien on certain real estate belonging to defendants, by decreeing a sale thereof to pay said tax bill if they failed to redeem it. Defendants appealed.

The petition is as follows:

"Plaintiff for his cause of action against defendants states that Kansas City, Missouri, is a municipal corporation duly created and existing under and by virtue of the laws of the State of Missouri.

"That on the 15th day of November, 1920, the said city, acting by and through its Board of Public Works, duly made out and issued to Thomas M. Torson, and Charles M. Torson, doing business as the Torson Construction Company, the contractor, certain special tax bills, copies of which are attached, in part payment of the cost of the public improvement work in said tax bills specifically mentioned and described, and on said date duly certified to the city treasurer the apportionment of the cost of said work; that said work was done in accordance with the provision of ordinance No. 38178, of said city, entitled: 'An ordinance providing for and authorizing the work of constructing district sewers in Sewer District 474, in Sewer Division 5, in Kansas City, Missouri, stating the nature of the improvement; how the cost thereof shall be paid; how the assessment therefor shall be made and levied, and ratifying, approving and confirming a contract therefor.' Approved July 16, 1920.

"That the said contractor sold and assigned the special tax bill hereinafter set forth to plaintiff prior to the bringing of this suit, for a valuable consideration; that plaintiff is now the legal owner and holder of the said tax bills and that the same are now each and all due and unpaid; that the defendants own or claim to own the land hereinafter described, or some estate or interest therein.

"Wherefore, plaintiff prays for special judgment, against defendants, and for the foreclosure of the lien of the several tax bills against the lots or land hereinafter in separate counts severally described and for costs:

"Plaintiff states that by reason of the premises the land described in the tax bills set forth in this count of the petition is legally chargeable with a lien in favor of plaintiff on account of the cost of the work aforesaid with the sum of thirty-six hundred two (3602) dollars and thirty-two cents with interest on said sum at the rate of eight per cent per annum from the date of the tax bill until paid, as per tax bill No. 188, a copy of which is as follows: hereto attached, marked Exhibit 'A,' made a part hereof, and the statements therein made a part of the allegations of this petition; that default was made in the payment of the first installment and interest that became due on the 30th day of June, 1921, by reason of which default the whole amount of the installments became due and is now due and collectible; that the lien of the plaintiff is paramount, prior and superior to the lien, if any, of the defendants.

"Wherefore plaintiff prays for special judgment against defendants and for the foreclosure of the lien of the tax bill against the lot or land in this count described, and for costs."

Defendants urge that the court erred (1) in overruling the objection to the introduction of any testimony under the petition, and (2) in refusing to sustain defendants' demurrer to the evidence at the close of the case.

When the object of the suit is to enforce a lien upon a particular piece of property, the proceeding is one in rem and it is, of course, necessary to describe the property in the petition else there is nothing upon which the lien can be enforced. [Brown v. Chaney, 256 Mo. 219, 223, 165 S.W. 335.]

It will be observed that the petition nowhere describes the property on which the tax bill is to be enforced. How then can the judgment operate thereon? It may perhaps be true that the tax bill contains a description of the property, but the tax bill is evidence in the case and forms no part of the pleading, nor can it be relied upon to "eke out" the deficiencies of the petition. [Vaughan v. Daniels, 98 Mo. 230, 234, 11 S.W. 573; Scott v. Vincennes Bridge Co., 299 S.W. 145, 146; Cole v. Parker-Washington Co., 276 Mo. 220, 275, 207 S.W. 749; Miner v. Sever, 255 S.W. 578, 579.]

It is contended, however, that the petition is one in which there may doubtless be an imperfect or defective statement of a good cause of action, but that the petition is not one where no cause of action whatever is, or can be, shown. Hence, says plaintiff, it takes more than a mere oral objection to the introduction of evidence to successfully attack it. And, by filing an answer (even though it be nothing more than a mere general denial), and going to trial, the defendant waived the deficiency of the petition. In support of this contention plaintiff cites American Clay M. Co. v. Sedalia Brick Co., 174 Mo.App. 485, 160 S.W. 902; Crone v. Mallinckrodt, 9 Mo.App. 316; City of Moberly v. Hogan, 131 Mo. 19, 32 S.W. 1014; Kansas City v. American Surety Co., 71 Mo.App. 315, 321; Seaboard National Bank v. Wright's Trustee, 68 Mo.App. 144; Barber Asphalt Co. v. Young, 68 Mo.App. 175; and Staley House F. Co. v. Wallace, 21 Mo.App. 128, 132.

In the case first cited, however, American Clay M. Co. v. Sedalia Brick Co., it should be observed that although an objection to the introduction of any evidence was made to the original and to the amended petition, no objection was made to the second amended petition, on which the case was tried, but the defendant filed answer and went on trial. [See p. 490 of 174 Mo. App.] In Crone v. Mallinckrodt, supra, the petition was defective in not alleging the passage of the ordinance, but it did allege that the work was done by authority of the ordinance and that, under the ordinance, the cost was chargeable as a special tax, etc. The court said, on p. 319, that--

"These allegations, which are plainly insufficient to make the pleading good, had objection been taken in the proper way, may, in connection with the other allegations showing that proceedings were taken as on the basis of a valid ordinance and the tax bills issued, be resorted to for the purpose of sustaining the judgment. In view of all that is alleged, it cannot be said that no cause of action is shown, but it appears rather that there is an imperfect and defective statement of a good cause of action."

In City of Moberly v. Hogan, supra, the ordinances supporting or authorizing the tax bill were not...