Buchanan v. Cabiness, 21085.

• Citation: 221 S.W.2d 849
• Decision Date: 13 June 1949
• Docket Number: No. 21085.,21085.
• Parties: WALTER R. BUCHANAN, RESPONDENT, v. K.A. CABINESS, APPELLANT.
• Court: Court of Appeal of Missouri (US)

221 S.W.2d 849

WALTER R. BUCHANAN, RESPONDENT, v. K.A. CABINESS, APPELLANT.

No. 21085.

Kansas City Court of Appeals. Missouri.

Opinion delivered June 13, 1949.

Appeal from Circuit Court of Jackson County. — Hon. Emory H. Wright, Judge.

REVERSED AND REMANDED.

Sherman E. Cabiness for appellant.

(1) Plaintiff failed to have this tax bill included in the petition in the collector's suit under the Land Trust Act or to file an answer in that suit within sixty days after such suit was instituted. Thereafter, this suit stood abated and the court was without jurisdiction to proceed in this case. Sections 11201.20 and 11201.14, R.S. Mo., 1939; Imse-Schilling Sash & Door Co. v. Kellems, 179 S.W. 2d 910; Richards Brick Co. v. Wright, 82 S.W. 2d 274; Mansfield Lumber Co. v. Johnson, 91 S.W. 2d 239. (2) The court erred to the prejudice of the intervenor in refusing to dismiss this action for want of that diligence in prosecution required of the plaintiff by the law. Wiles-Chipman Lumber Co. v. Peiper, 176 S.W. 2d 50. (3) The trial court erred in failing and refusing to hold the alleged cause of action on the tax bill was barred by limitations. Sections 309, 314, Article VIII, Kansas City, Mo., Charter; Fleshner v. Kansas City, 348 Mo. 978, 156 S.W. 2d 706 (2); Lewis v. Missouri Pac. R. Co., 23 S.W. 2d 100; Granite Bituminous Pav. Co. v. Parkview Realty & I. Co., 199 Mo. App. 226, 201 S.W. 933; City of New Madrid v. Broughton, Mo. App., 3 S.W. 2d 1038, 1039 (1); Gilsonite Const. Co. v. Greffet, Mo. App., 156 S.W. 765; Baysinger v. Hanser, Mo. Sup., 199 S.W. 2d 644, 646; Mayne v. Jacob Michel Real Estate Co., 237 Mo. App. 952, 180 S.W. 2d 809; Devault v. Truman, 354 Mo. 1193, 194 S.W. 2d 29, 32.

George L. Walker and Dwight M. Smith, Jr., for respondent.

(1) The foreclosure judgment in the Land Trust Suit was set aside and the property redeemed by payment of the taxes sued on therein before trial of this case. The trial court properly held this suit was not abated and the court had jurisdiction to proceed to render judgment. Warder v. Henry, 117 Mo. 530, 23 S.W. 776, 779; Nelson v. Massman Construction Co., 231 Mo. App. 1, 91 S.W. 2d 623, 629; Lawyers Co-operative Publishing Co. v. Sleater, 130 S.W. 2d 192, 194; Section 27, Laws of Missouri, 1945, pages 1761, 1768 (Sec. 11201.27, R.S., 1939, Mo. R.S.A.); Sections 14, 16 and 20, Laws of Missouri, 1943, page 1029 (Secs. 11201.14, 11201.16 and 11201.20, R.S., 1939, Mo. R.S.A.); 42 C.J., p. 525, Par. 195; 42 C.J., p. 516, Par. 173; 49 C.J.S., p. 557, Par. 306; Manchester Iron Works v. E.L. Wagner Construction Co., 341 Mo. 389, 107 S.W. 2d 89, 93, 95; 1 Am. Jur., p. 479, Par. 95; Johnson v. Manhattan Railway Co., 289 U.S. 479, 77 L. Ed. 1331, 53 S. Ct. 721, 728; 1 C.J.S., p. 1373, Pars. 113 a (2) and 113 a (3); Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W. 2d 86, 107. (2) The court properly exercised its discretion in refusing to dismiss this action for want of prosecution. State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W. 2d 632, 638; Julius Seidel Lumber Co. v. Hydraulic Press Brick Company, (Mo. App.) 288 S.W. 979, 981; Hodges v. Brooks, 223 Mo. App. 667, 110 S.W. 2d 1130, 1135; 39 Am. Jur., p. 950, Par. 79; Drainage District v. Kirkpatrick-Pettis Co., (Neb.) 300 N.W. 582, 587; 14 Standard Ency. of Procedure 330. (3) This cause of action was not barred by limitations. Appellant waived the defense of the statute of limitations by failure to plead the statute. Alexander v. Haffner, 323 Mo. 1197, 20 S.W. 2d 896, 898; McGrew v. Carr, 223 Mo. App. 1231, 21 S.W. 2d 640, 641; Section 314, Article VIII, Charter of Kansas City, Missouri; Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W. 2d 86, 104; Gibson v. Randsell, (Mo. Sup.) 188 S.W. 2d 35, 36, 37, 38; American Radiator Co. v. Connor Plumbing & Heating Co., 277 Mo. 548, 211 S.W. 56, 57; Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257, 260; Baysinger v. Hanser, (Mo. Sup.) 199 S.W. 2d 644, 645; Sections 23, 40 and 62, Laws of Missouri, 1943, page 353 (Secs. 847.23, 847.40 and 847.62, R.S., 1939, Mo. R.S.A.); City of St. Louis v. Miller, (Mo. App.) 145 S.W. 2d 504, 505; Secs. 876 and 2022, R.S. Mo., 1939; Ferber v. Brueckl, (Mo. Sup.) 17 S.W. 2d 524; Menefee v. Bell, 62 Mo. App. 659, 662.

DEW, P.J.

This is a suit to foreclose a special tax bill. Judgment was for the plaintiff (respondent) in the sum of $320.63 and for the lien prayed for. Defendant (intervenor and appellant) has appealed.

The petition was filed in Jackson County, June 25, 1935. The plaintiff named therein was Thomas R. Hunt, and the defendants were Roy I. Engle and Magdalen M. Engle. In substance, the plaintiff alleged, among other things, that Kansas City, Missouri was a duly organized and existing municipal corporation; that said city, on May 29, 1931, issued to a certain contractor a certain special tax bill on Lot 550, Marlborough Heights in said city, in part payment for sewer construction; that the bill was timely and duly certified to the city treasurer; that the construction work was duly completed according to ordinance; that the tax bill was sold and assigned to the plaintiff; that Lot 550, Marlborough Heights was duly assessed in the sum of $196.60 as its proportionate part of said costs; that the attached tax bill, in question, by its terms, was payable in four installments, the last installment being due and payable June 30, 1934; that the bill provides that it constitutes a lien on said lot for a period of one year after the last installment becomes due unless a suit be instituted thereon within such year upon ten days' notice filed in the city treasurer's office; that the three installments were due and unpaid, in the sum of $147.45, with interest. The prayer was for foreclosure of the lien.

Summons was issued to the defendants and on September 9, 1935, the sheriff made a non est return thereon. On January 6, 1937, Walter R. Buchanan, upon his application as assignee and purchaser of the tax bill, was substituted as plaintiff in the cause with the consent of Thomas R. Hunt. On November 26, 1946, K.A. Cabiness moved for leave to intervene as a party defendant, having acquired a quit-claim deed to Lot 550 from the defendants Engle. By the order of the court she was permitted to intervene. She then moved to dismiss the petition because of failure to prosecute the cause with diligence and because the claim was barred by judgment of April 5, 1946, in a Land Trust action brought by the Collector of Revenue for Jackson County. The motion to dismiss was overruled. On December 10, 1946, Walter R. Buchanan again petitioned to be substituted as plaintiff, the explanation being that the record of the court's action upon his former application had not been found. The second application for his substitution as plaintiff was sustained.

At the trial the intervenor again moved to dismiss the petition, for want of jurisdiction over the defendants or of the subject matter, and for the reason that another cause of action was pending between the parties known as a Land Trust Suit No. 9, Serial No. M-620-620. This motion was overruled. The substituted plaintiff then dismissed the action as to defendants Engle. Plaintiff thereupon introduced proof of his possession and ownership of the tax bill in question and that there was due thereon $147.45 principal, and $173.18 interest, a total of $320.63.

The only evidence or reference to a Land Trust suit consists largely of colloquy between the court and counsel and the findings of the court, set forth below. Addressing the court the respondent's counsel said:

"* * * If the Court please, with regard to this new motion filed, there are some points I think we can agree on but I would want a day or two to get some evidence up here. In other words, he talks about the Land Trust Suit. That property was in the Land Trust Suit but the Land Trust Judgment was set aside. I take it under those circumstances the Land Trust action was dismissed as to the property and that is out of the case. * * *

"MR. CABINESS: * * * he has stated a wrong conclusion. This case is in the Land Trust, in Land Trust 9, Serial No. M-620-620. According to the records this case has never been dismissed. That case is still in good standing.

"THE COURT: It is on that point Mr. Smith suggested that evidence would have to be introduced. The motion doesn't prove itself.

"MR. SMITH: The record shows the judgment was vacated and set aside December 18, 1946.

"THE COURT: What judgment was that?

"MR. SMITH: The judgment in the land tax action; that serial number was vacated and set aside. * * *"

Upon cross-examination of the plaintiff (respondent) he was asked:

"Q (By Mr. Cabiness) Did you know there is a Land Trust Law? A. I have heard of it. * * *

"MR. CABINESS: I don't have the tax statement in regard to this property to show that this property is still in the Land Trust, No. M-620-620. If the Court will permit that statement to be made and counsel will agree —

"MR. SMITH: I understood that the judgment was vacated on December 14, 1946.

"MR. CABINESS: And the case is still at issue in the Land Trust as to serial No. M-620-620.

"THE COURT: It is admitted that there is a suit pending in M-620-620, whatever the number is. Is that correct?

"MR. CABINESS: That's right.

"MR. SMITH: I assume it is pending. Section 23 says that suit shall be dismissed when land is redeemed on any particular tract, whether the Land Trust suit is pending —

"MR. CABINESS (interrupting): The point, your Honor, is that the property has not been redeemed. You are making that statement — As a matter of proof the record will show that this suit M-620-620 is still a pending action.

"MR. SMITH: That judgment was vacated and set aside.

"MR. CABINESS: It is a pending action between the parties.

"Q (By MR. CABINESS to the witness Buchanan) At any time did you file an answer in the Land Trust Suit No. 9, M-620-620? A. I did not. * * *

"Q. You didn't answer or defend in the Land Trust...