City of Moberly v. Hassett

• Decision Date: 02 December 1907
• Citation: 106 S.W. 115,127 Mo. App. 11
• Court: Missouri Court of Appeals
• Parties: CITY OF MOBERLY ex rel. MOBERLY BRICK, TILE & EARTHEN WARE CO. v. HASSETT et al.

106 S.W. 115

127 Mo. A. 11

CITY OF MOBERLY ex rel. MOBERLY BRICK, TILE & EARTHEN WARE CO. v. HASSETT et al.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

1. LIMITATION OF ACTIONS — MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — SPECIAL TAXES — ENFORCEMENT.

Where the relator under contract with plaintiff city became entitled to have special tax bills issued against the defendants to pay for the paving of a street, his right thereto was a liability or obligation created by statute within the statute; Rev. St. 1899, § 4273 [Ann. St. 1906, p. 2349], limiting the time to sue on such claims to five years, so that, where the tax bills were not issued for more than five years from the time his right to them accrued, he cannot maintain an action thereon, since he might at any time have compelled the city to issue them, or have taken measures to levy the taxes against the property liable.

2. SAME — PERSON ENTITLED TO PLEAD STATUTE.

Though tax bills issued by a city to a contractor to pay for a street improvement are the city's obligation, the party against whom they are issued is the real party in interest, and when sued upon the tax bills may interpose a plea of the statute of limitations, in that the tax bills were not issued within the time prescribed after the contractor's right to them accrued.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by the city of Moberly, on the relation of the Moberly Brick, Tile & Earthen Ware Company against George L. Hassett and others. From a judgment for plaintiff, defendants appeal. Reversed.

W. P. Cave, for appellants. Martin & Terrill, for respondent.

ELLISON, J.

This is an action on a special tax bill issued for paving Williams street, in the city of Moberly, with vitrified brick. The judgment in the trial court was for the plaintiff. The principal point against the judgment is the statute of limitations. It appears that on the 16th of May, 1892, the city council of Moberly adopted a resolution declaring it to be the sense of the council that Williams street be paved. The resolution was duly published. Afterwards, on the 9th day of July, 1892, an ordinance was passed for the paving. The relator's bid was accepted, and the city entered into a written contract with him to issue tax bills for the paving, and the paving was completed and accepted on the 15th day of December, 1892, when special tax bills were ordered to be issued according to law. In pursuance of said order, the city engineer on the 15th day of December, 1892, issued and delivered to relator what purported to be special tax bills for doing said paving, purporting to be issued by virtue of an ordinance assessing and levying a special tax for said work, when, in truth and in fact, no such ordinance had been passed. When said tax bills on their face purported to fall due, viz., one-third after one year, one-third after two years, and one-third in three years from date, and when the last of said bills fell due, the relator undertook by process of law to collect them, when it first developed that there had been no levy made to collect the tax, and on September 24, 1897,...