City of Mexico v. Upham

• Decision Date: 05 May 1919
• Docket Number: No. 13083.,13083.
• Citation: 211 S.W. 882
• Parties: MY OF MEXICO, to Use of WEST, v. UPHAM et al.
• Court: Missouri Court of Appeals

211 S.W. 882

MY OF MEXICO, to Use of WEST, v. UPHAM et al.

No. 13083.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Callaway County; D. H. Harris, Judge.

"Not to be officially published."

Suit by the City of Mexico, to the use of William E. West, against W. H. Upham and others. From judgment for plaintiff, defendants appeal. Reversed, and cause remanded.

Clarence A. Barnes, of Mexico, Mo., for appellants.

J. W. Buffington, of Mexico, Mo., and Baker, of Fulton, for respondent.

BLAND, J.

This is a suit on a tax bill issued by the city of Mexico in favor of the contractor, who assignee, the bill to plaintiff, William E. West. Defendants filed a demurrer to the petition, and, the same having been overruled, they refused to plead further and judgment went in favor of plaintiff. In support of their contention that a demurrer to the petition should have been sustained, defendants urge that plaintiff did not have legal capacity to sue, and that there was a defect in parties plaintiff; it being urged that the suit should have been brought in the name of the party to whom the tax bill was issued, and not in the name of his assignee. It is well settled that an assignee may bring a suit of this kind in his own name. Section 1729, R. S. 1909; City of St. Louis, to the Use of Decker, v. Rudolph, 33 Mo. 465; City of Kansas, to the Use, v. Rice, 89 Mo. 685, 1 S. W. 749.

The demurrer to the petition should have been sustained as to defendants Elliott Locke and S. M. Locke, for the reason that the petition does not state any cause of action against them. Their names appear only in the caption of the petition. The allegations of the petition nowhere connect them in any way with the cause of action.

The petition asks for a special judgment against the defendants and for the enforcement of the lien of the tax bill against the land. However, the judgment is not only a special judgment, but a general judgment against the defendants. For this reason the judgment is defective as against all of the defendants, and the case must be reversed and remanded, even though no motion in arrest was filed. Balch v. Myers, 65 Mo. App. 422, loc. cit. 427, 428; Chemical Co. v. Nickells, 66 Mo. App. 878, loc. cit. 689.

There are other points raised in reference to the point that the petition fails to state a cause of action. Some of them do not go to the matters appearing on the face of the petition, and therefore are not raised by the demurrer,...