City of New Madrid v. Broughton

• Decision Date: 03 March 1928
• Docket Number: No. 4218.,4218.
• Citation: City of New Madrid v. Broughton, 3 S.W.2d 1038 (Mo. App. 1928)
• Parties: CITY OF NEW MADRID, to USE of PHILLIPS, v. BROUGHTON et al.
• Court: Missouri Court of Appeals

3 S.W.2d 1038

CITY OF NEW MADRID, to USE of PHILLIPS, v. BROUGHTON et al.

No. 4218.

Springfield Court of Appeals. Missouri.

March 3, 1928.

Appeal from Circuit Court, New Madrid County; W. S. C. Walker, Special Judge.

Suit by the City of New Madrid, at the relation and to the use of Annie M. Phillips, against Della B. Broughton and others. From a judgment for plaintiff, defendants appeal. Reversed.

Edgar Shook, of Jefferson City, for appellant Broughton.

R. F. Baynes, of New Madrid, for appellants Nadine Hunter et al.

BRADLEY, J.

This is a suit on three separate tax bills; the petition being in three separate counts. Judgment was for plaintiff on each count, and defendants bring the cause here by special appeal allowed by this court under section 1474, R. S. 1919.

July 7, 1919, the board of aldermen of the city of New Madrid, a city of the fourth class, adopted a resolution deeming and declaring it necessary to bring to the established grade and pave certain streets. No question is raised as to regularity of the proceedings resulting in the issuance of the tax bills sued on; hence it is not necessary to further mention such proceedings. W. D. Lonergan was the contractor, and did the paving provided for, and tax bills therefor were issued to him. Thereafter the contractor assigned the tax bills here involved to relator, Annie M. Phillips.

The three tax bills involved here are the same in amount and form, and differ only in the date when due. All were issued June 30, 1920, and were due in one, two, and three years, respectively, from date of issue. The first one of the tax bills involved here concludes as follows:

"Now, therefore, the undersigned, do issue this tax bill in favor of W. D. Lonergan, contractor, and against the above-described tract of land, in the sum of two hundred seventy and 65/100 dollars, and is No. 1 of series of three tax bills chargeable against the property above described. It is payable in one year from the date thereof, at the city hall in the city of New Madrid, Mo., and is one-third of the amount taxed against the property herein mentioned for said improvement. The tax bill shall bear interest at the rate of eight (8) per cent. per annum from the date of issue, and is a special lien against said real estate, which lien shall continue from and after the date of this tax bill until one year after the date of maturity of the last installment above provided for and until the expiration of any litigation to enforce the same, unless sooner paid."

The named defendants are the minor children and former wife of D. R. Hunter, deceased. The unknown defendants are those who might, in the future, be affected because of the will of D. R. Hunter, deceased. The record discloses that personal service was had on the named defendants in Cole county, and that service by publication was had as to the unknown defendants. Defendant Della B. Broughton filed no answer. R. F. Baynes, Esq., a member of the New Madrid bar, was by the court appointed guardian ad litem for the minor defendants and attorney for the unknown defendants. The guardian ad litem and attorney for the unknown defendants for answer filed a general denial for the minor and unknown defendants. The court, "after hearing all the evidence adduced," found for plaintiff, and rendered judgment accordingly.

Each of the tax bills provides that it "is a special lien against said real estate, which lien shall continue from and after the date of this tax bill until one year after the date of maturity of the last installment above provided for and until the expiration of any litigation to enforce the same, unless sooner paid."

The tax bills were issued June 30, 1920, and were due in one, two, and three years; hence the third and last one was due June 30, 1923. Therefore, by the terms of the bills, the lien expired by limitation on June 30, 1924. Petition was filed and process issued March 17, 1926.

The contention is that the lien of the tax bills had expired long prior to the commencement of the cause. From the petition we conclude that the tax bills were issued under section 8508, R. S. 1919. This section reads as follows:

"Tax Bills to be Paid in Three Annual Payments, When. —...