City of Sedalia v. Montgomery

• Citation: 227 Mo. 1,127 S.W. 50
• Parties: CITY OF SEDALIA ex rel. GILSONITE CONST. CO. v. MONTGOMERY et al.
• Decision Date: 30 March 1910
• Court: United States State Supreme Court of Missouri

127 S.W. 50

227 Mo. 1

CITY OF SEDALIA ex rel. GILSONITE CONST. CO. v. MONTGOMERY et al.

Supreme Court of Missouri.

March 30, 1910.

MUNICIPAL CORPORATIONS (§ 297) — STREET IMPROVEMENTS — CITY COUNCIL — ADOPTION OF REPORT OF COMMITTEE.

A city council, authorized by Laws 1892-93, p. 92, § 110, to make a street improvement, adopts the report of a committee that a remonstrance was insufficient by introducing and passing an ordinance for the improvement after the report was received and placed on file.

In Banc. Appeal from Circuit Court. Franklin County; W. C. Davidson, Judge.

Action by the City of Sedalia, on the relation of the Gilsonite Construction Company, against John Montgomery, Jr., and others. Judgment for defendants, and plaintiff appealed to the St. Louis Court of Appeals, where the judgment was reversed (109 Mo. App. 197, 88 S. W. 1014) and the case certified to the Supreme Court because of a conflict between the decision and a decision of the Kansas City Court of Appeals. The judgment of the St. Louis Court of Appeals affirmed, and the cause remanded to the Circuit Court to enter judgment in favor of plaintiff.

Geo. P. B. Jackson, for appellant. Barnett & Barnett, for respondents.

FOX, J.

This suit originated in January, 1902, and was brought by the plaintiff in the circuit court of Pettis county, in which it was sought to recover the respective amounts due upon special tax bills which were issued by the city of Sedalia in payment for paving West Sixth street in said city. The record discloses that during the progress of this controversy, by proper orders, other parties were made defendants either by substitution or by being permitted to enter their appearance in the cause. The record also discloses that there was a stipulation filed by the parties interested changing the venue of said cause from the county of Pettis to the county of Franklin, and in pursuance of such stipulation all the record and proceedings in the cause were transmitted to the circuit court of Franklin county. The cause came on for trial before the Franklin county circuit court. A jury being waived, the cause was submitted to the court. After a hearing of the evidence, there was a finding by the court, sitting as a jury, for the defendants, and judgment was entered in accordance with such finding. From this judgment the plaintiff prosecuted an appeal to the St. Louis Court of Appeals, and that court, upon hearing, reached the conclusion that the judgment of the circuit court of Franklin county was erroneous and should be reversed. However, the learned and esteemed judge who wrote the opinion very frankly stated that the conclusions as reached in the opinion, in which his associates concurred, were in conflict with the opinion of the Kansas City Court of Appeals, as expressed in Knopfi v. Gilsonite Roofing & Paving Co., 92 Mo. App. 279, and City of Sedalia ex rel. v. Scott, 104 Mo. App. 595, 78 S. W. 276. Hence it followed that an order was made certifying this case to the Supreme Court, and it is now before us for consideration. As was said by the St. Louis Court of Appeals, the opinion and conclusions reached in the case at bar are directly in conflict with the opinion announced by the Kansas City Court of Appeals in the cases referred to. The leading and controlling propositions in these cases, to which reference is made, are substantially the same, and the respective Courts of Appeal, in the solution of the propositions involved, gave them very careful attention and consideration. The authorities are collated and reviewed, and very little, if anything, can be added to the views of those courts, as expressed in the opinions. It is simply a difference between those courts as to the proper interpretation and application of the law applicable to the legal propositions disclosed by the records in the cases before them.

We have, with great care, examined and analyzed in detail the facts disclosed by the record, as developed upon the trial of this cause. We have read and re-read the opinions by the learned and esteemed judges of the respective Courts of Appeal, that is, the Kansas City Court of Appeals and the St. Louis Court of Appeals, wherein the propositions involved in those proceedings are fully discussed. It is sufficient to say that the opinion and conclusions reached by...