City of Kirksville ex rel. v. Harrington

• Decision Date: 03 November 1930
• Docket Number: No. 16971.,16971.
• Citation: 35 S.W.2d 614
• Parties: CITY OF KIRKSVILLE EX REL. S.L. EGGERT, RESPONDENT, v. FRANK HARRINGTON ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

35 S.W.2d 614

CITY OF KIRKSVILLE EX REL. S.L. EGGERT, RESPONDENT, v. FRANK HARRINGTON ET AL., APPELLANTS.

No. 16971.

Kansas City Court of Appeals. Missouri.

November 3, 1930.

Appeal from the Circuit Court of Adair County. — Hon. A.G. Knight, Special Judge.

AFFIRMED.

Mills & Jayne for respondent.

Reiger & Reiger and S.H. Ellison for appellants.

BOYER, C.

This is an action to recover on three tax bills issued by the city of Kirksville against the property of defendants to S.L. Eggert in part payment for the construction of a district sewer. The petition is in three counts and in usual form.

Defendants admit that they are the owners of the land described in the petition, deny all other allegations therein, and further affirmatively allege that the city council of the city of Kirksville approved ordinance No. 3843, which by its terms orders the construction of the sewer in question and provides that the contract for construction shall be let to the lowest and best bidder, and directs the city clerk to advertise for bids therefor for seven consecutive insertions in the Daily News, a daily newspaper printed and published in said city, and further provides that Councilman Frank W. Russell be designated as officer in charge of said work; that said Russell was a member of the city council and was at all times in the employment of the plaintiff and so remained as his agent during the construction of the sewer; that plaintiff did not enter into a contract with the city of Kirksville for the construction of said sewer in accordance with the terms of said ordinance; nor was said contract entered into and let upon competitive bidding to the lowest and best bidder, nor was the notice of letting of said contract and advertising for bids thereon ever given by advertising in the Daily News nor any other paper; that plaintiff did not enter into a good and sufficient bond for the performance of said contract, but was permitted by said Russell and other members of the council to sign a paper purporting to be a bond with no surety, the purpose and reason therefor being to enable plaintiff to avoid expense in procuring a bond and thereby enable him to either underbid competition or to make additional profit; that all of the land embraced in said district was not included in the apportionment of the cost of the sewer, but that a certain lot was excluded in the apportionment and that the pro rata cost of said sewer upon said excluded land was taxed pro rata against the defendants' property and that of others in the district. The answer also contains the following:

"Defendants further say that at all of the times mentioned in the petition and at the time District 119 by Ordinance No. 3843 was established their lands were not susceptible to service by any sewer to be constructed in said district; and that said sewer does not run in such a manner as to be available for use by defendants, as plaintiff knew; that a large portion of said land lies lower than said sewer and cannot be served thereby, as plaintiff and the said Russell at all times well knew. That before plaintiff attempted to enter into any contract with the city or had done any work in constructing any sewer in said district, he knew that the major portion of defendants' lands was already served by a sewer on said lands, which had theretofore been constructed and paid for by defendants and by those through whom they acquired the same, and the defendants' lands would not, and could not be benefited on account of any sewer proposed to be constructed by plaintiff, nor was said sewer constructed as per plans and specifications, being shallower than said plans.

"Defendants plead the foregoing facts in bar of plaintiff's action and further say that for the reason herein stated, said tax bills are illegal and void."

Defendants' prayer was that the court adjudge the tax bills void and that they be cancelled.

Upon these pleadings the case was tried as in equity, judgment was for plaintiff upon all counts of the petition for the amount shown due in each tax bill, and each bill was declared to be a special lien on the property against which it was issued, describing the same. Defendants appealed. Pertinent facts will be stated in the course of the opinion.

A preliminary matter requires attention. Respondent has filed his motion to dismiss the appeal on the ground that appellants have failed to comply with Rule 15 of this court in that they did not deliver a copy of any abstract, brief, or points and authorities to the respondent, or to any attorney for the respondent, at least twenty days before the day on which the cause is docketed for hearing. From the information before us, it appears that counsel for respondent received a copy of appellants' abstract, record and brief on September 16, 1930, and was therefore served twenty days before the 6th day of October, 1930, the day upon which the case was docketed for hearing. But this abstract purports to be in the case of "S.L. Eggert, respondent, v. Frank Harrington et al., appellants," and we assume that the point made by respondent against the abstract is that it does not appear to be and is not in fact an abstract in the case of "City of Kirksville ex rel. S.L. Eggert, respondent, v. Frank Harrington et al., appellants." The controversy on this point has arisen solely, so far as we are aware, out of the fact of a variation in the title of the cause during its progress. It appears from the additional abstract of record filed by appellant, as well as from the petition itself, that plaintiff filed his suit in his individual name and not in the name of the city to his use. The original style of the case was S.L. Eggert, plaintiff, v. Frank Harrington (and 5 others), defendants. The case was No. 19872. Defendants' answer bore the same title and number of the cause. At the conclusion of the trial the court took the case under advisement and the record then showed the title of the cause to be "City ex rel. S.L. Eggert, plaintiff, v. Frank Harrington et al., defendants, No. 19872." When judgment was entered the case was entitled, "City of Kirksville at the relation of S.L. Eggert, plaintiff, v. Frank Harrington et al., defendants, 19872," and the style of the case continued the same upon the filing of motion for new trial, when same was overruled, and when the order granting the appeal was made, and the short form transcript reaching this court bears the same title.

After appeal, plaintiff filed his motion in this court to affirm the judgment on the ground that the appeal had not been perfected in time, and in that motion the style of the case is the same as it is last set out. That motion was overruled.

We do not perceive that a variation in the style of the cause has in any manner affected the merits, nor that it is a matter of substance. It is now immaterial whether plaintiff brought this suit in his individual name or in the name of the city to his use as Section 8305, Revised Statutes 1919, as amended by Laws of 1921, page 501, directs, because that subject relates wholly to the question of a defect of parties apparent on the face of the petition, which was waived by the answer. [State ex rel. v. Chemical Works, 249 Mo. 702, 721.] Defendant does not raise the point and certainly plaintiff should not complain. If a matter of substance, plaintiff would have had the right to amend the title of his cause and it would be treated as so amended. The action which was instituted, tried, adjudged, and appealed is the case which is before us, and the abstract and brief filed will be treated as the abstract and brief in the case appealed.

Respondent has also filed his motion to strike from the files the additional abstract of the record filed by appellants. Following the service of appellants' abstract of the record, the respondent, on the 24th of September 1930, served upon appellants' attorney and filed here a purported additional abstract in the case entitled, "S.L. Eggert, respondent, v. Frank Harrington et al., appellants," in which it is stated that no motion for new trial in said cause was taken up and overruled by the court, nor was there any record entries of the court in said cause that the defendant filed application and affidavit for appeal or that an appeal was taken or allowed in said cause. Within eight days after the service of respondent's additional abstract, the appellants, on the 1st day of October, 1930, served upon respondent's counsel and filed here their additional abstract of the record showing the facts in reference to the alteration of the style of the case on the record of the court as above set out, and that motions for new trial and in arrest of judgment were filed and overruled, and that an appeal was duly taken in the case under the present title of the same. The additional abstract is permissible for the purpose of identifying the case. The motion to dismiss the appeal, as well as the motion to strike appellants' additional abstract should be overruled.

The errors assigned and treated in the brief may be consolidated under two points. (1) That the court erred in excluding evidence, and (2) that there was a failure to advertise for bids, that bidders were misled by the notice given, and the contract not let by competitive bidding.

Of the excluded evidence. Defendants offered to prove that at the time of the passage of the ordinance establishing sewer district No. 119 a portion of the premises of the defendants...