City of Aurora v. Lindsay

• Decision Date: 08 December 1898
• Citation: 146 Mo. 509,48 S.W. 642
• Parties: CITY OF AURORA ex rel. WILLIAMS v. LINDSAY et al.
• Court: Missouri Supreme Court

48 S.W. 642

146 Mo. 509

CITY OF AURORA ex rel. WILLIAMS v. LINDSAY et al.

Supreme Court of Missouri, Division No. 1.

December 8, 1898.

TAX SALE — MOTION TO SET ASIDE — JURISDICTION — PRACTICE — MUNICIPAL TAXES.

1. Though judgment for tax sale be rendered by a justice of the peace, the transcript being filed in the circuit court, and execution issued by it, on which sale is made, motion to recall the execution and set aside the sale is properly made in the circuit court.

2. Judgment for tax sale having been rendered by a justice of the peace September 18, 1894, and transcript filed in the office of the clerk of the circuit court, the terms of which were held on the second Monday in February and the third Monday in August, and sale had at February term, 1895, under said judgment and execution issued by the circuit court, motion to recall the execution and set aside the sale, filed June 10, 1895, and heard at the August term, is in time.

3. The provisions of Rev. St. 1889, § 1604, must be followed in actions for collection of taxes due cities of the fourth class, rather than those of section 7672 et seq., the latter being part of an act of 1883, while the former was adopted by the 35th general assembly as part of the act revising the cities, towns, and villages law.

4. Execution and sale thereunder on judgment for tax sale for taxes of 1891, 1892, and 1893 should be set aside, the collector having, after suit begun, told the owner that taxes were due for 1892 and 1893 only, and that no suit was pending therefor, and having accepted payment and given receipt therefor, and having, after judgment was rendered, said that the taxes for 1891 were not in suit, and having then accepted payment of them with the penalty, and given receipt therefor, and no demand being made for payment of the costs.

Brace, P. J., and Robinson, J., concurring in result.

Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

In a suit by the city of Aurora, on the relation of John A. Williams, as the city collector, against John A. Lindsay, there was judgment for tax sale, and a sale was made under execution thereon to A. L. Owen. Said Lindsay and others made a motion to set aside the same, and, said plaintiff and Owen defending, the motion was denied, and the moving parties appeal. Reversed.

Motion to set aside a judgment and to recall the execution issued thereon, and to set aside the sale had thereunder. On the 3d of July, 1894, a suit entitled "City of Aurora ex rel. John A. Williams as the City Collector, Plaintiff, vs. John A. Lindsay, Defendant" was instituted before a justice of the peace for Aurora township, Lawrence county, Mo., to collect 75 cents for city taxes due the city of Aurora on lot 98, block 12, in Linzee's Second addition to said city, for the years 1891, 1892, and 1893. A summons for defendant was issued, and returned "Not found," etc., on July 18, 1894. Thereupon an order of publication was granted returnable September 18, 1894. The proof of publication showed it was published for four successive weeks in the Aurora Gazette, the last publication being at least 10 days before the day set for trial. The defendant did not reside in Lawrence county at the date of the institution of the suit, and did not appear in the case. On the 18th of September, 1894, the justice rendered judgment by default against defendant, and adjudged it a special lien against the said real estate, directed that it be enforced, and the real estate, or so much as was necessary, be sold to satisfy the judgment, and that a special execution issue therefor. The plaintiff caused a transcript of the judgment to be filed in the circuit clerk's office, and an execution to be issued thereon, under which the sheriff levied on said real estate, and sold it at the February term, 1895, of the circuit court of Lawrence county, to A. L. Owen, for $100, and he placed his deed on record. Prior to the institution of the tax suit, to wit, on February 25, 1893, John A. Lindsay executed a deed of trust on the land to Otto L. Mersman, trustee for the Missouri Savings & Loan Company, which was duly recorded in Lawrence county on February 27, 1893. Prior to the institution of the tax suit, to wit, some time in February, 1893, Lindsay conveyed the equity of redemption in the land to L. T. Mathews, but the deed was not recorded before the tax suit was begun. On the 10th of June, 1895, Lindsay, Mathews, and the Missouri Savings & Loan Association filed this motion in the circuit court, asking that the judgment of the justice be set aside, that the execution issued thereon be recalled, and the sale thereunder be set aside. Upon notice, duly served, the plaintiff and A. L. Owen, the purchaser at the sheriff's sale, were brought into the circuit court, appeared, and defended. There was a trial in the circuit court, on which it appeared that Mathews, the grantee of Lindsay, owned the equity of redemption by an unrecorded deed at the time the suit was commenced. After the suit was begun, Mathews went to Williams' (the collector's) office to pay the taxes on the land. Upon Williams' inquiry Mathews told him he had purchased the land from Lindsay. Williams said there was a suit pending against some of Lindsay's property for taxes, but, after ascertaining the number of this lot, said it was not included in the suit, and that the taxes for the years 1892 and 1893 were due. Mathews then paid those taxes, and Williams gave him a receipt for them. Five or six days later Williams notified Mathews that he had paid the taxes on the wrong lot, and that he would have to give up the receipts, and take back his money. Mathews said the taxes were paid on the lot he had bought, and refused to give up the receipts or take back the money. Thereupon Williams told him there was a suit pending against the lot for taxes, and for this reason he would have to return the receipts, and take back the money. Mathews refused to do this also. Three or four weeks later the justice of the peace before whom the case was pending told Mathews that he had failed to pay the taxes in full; that he had not paid the taxes for 1891. He and Mathews examined the papers, and found the tax bill for 1891 attached to the others, the justice saying it had been there all the time. Mathews went to Williams, and asked about the taxes for 1891. Williams replied they were in suit. Mathews replied there was no suit for the taxes for 1891. Williams examined his books, and said that was right, and accepted the money for the taxes and penalty (taxes 4 cents, penalty 1 cent), and gave Mathews a receipt for it. All this occurred before the judgment was entered on the 18th of September, 1894, except the payment of the taxes for 1891, which Mathews said he could not remember whether it was before or after the judgment. The tax receipts offered in evidence show that the taxes for 1892 and 1893 were paid August 1, 1894, and those for 1891 were paid November 17, 1894. The circuit court overruled the motion, and the parties thereto appealed.

Edw. J. White, for appellants. J. W. Leake and R. H. Davis, for respondent.

MARSHALL, J. (after stating the facts).

1. The jurisdiction of the circuit court to hear and determine this motion is challenged by plaintiff. It is contended that the proper procedure would be by bill in equity, and not by motion, because the motion was not filed during the term at which the sale took place, or before the return term of the writ. The record does not show when the transcript from the justice was filed in the circuit clerk's office, nor when the execution was issued. It simply recites that the sale under the judgment and execution was had at the February term, 1895. This motion was filed on the 10th of June, 1895, and was heard at the August term, 1895. The regular terms of the circuit court of the Twenty-Fourth judicial circuit are held in Lawrence county on the second Monday in February and third Monday in August. The judgment before the justice was rendered on September 18, 1894, hence, if the transcript was promptly filed in the circuit clerk's office, and the execution issued, and the levy made, no sale could have been made until the circuit court was in session after the second Monday in February, 1895 (which was the 11th day of February, 1895). Ordinarily, executions are returnable to the next succeeding term after they are issued. Section 4898, Rev. St. Mo. 1889. But if a sheriff levies an execution before the return term he may proceed and sell at any time during the return term. Karnes v. Alexander, 92 Mo. loc. cit. 672, 4 S. W. 520; Huff v. Morton, 94 Mo. 405, 7 S. W. 283. In this case, under these circumstances, the sale having been made during the February term, the August term became the return term of the execution. This motion was filed in June, and, being before the beginning of the August term, must be treated as having been filed in proper time. The proceeding by motion was proper under the decisions of this court. Ray v. Stobbs, 28 Mo. 35; Downing v. Still, 43 Mo. 309-321; Pockman v. Meatt, 49 Mo. loc. cit. 350; Marx v. Fore, 51 Mo. loc. cit. 74; McKee v. Logan, 82 Mo. loc. cit. 528; Wine Co. v. Scholer, 85 Mo. 499, 13 Mo. App. loc. cit. 349; City of St. Louis v. Brooks, 107 Mo. loc. cit. 384, 18 S. W. 23; Nelson v Brown, 23 Mo. loc. cit. 20; State v. Yancy, 61 Mo. 397; Real Estate Co. v. Lindell, 142 Mo. 61, 43 S. W. 368; Freem. Ex'ns (2d Ed.) §§ 305-308, 310. The fact that the judgment was rendered by the justice does not affect the controversy. It was the execution of the circuit court that did the damage, and that court alone had jurisdiction over its processes, and was charged with the duty to see that no injustice was done under color of its writs.

2. The parties to the motion contend that the judgment of the justice is void, because the suit was in the name of the city on the relation of the city collector, whereas it should have been in the name of the ...