City of Springfield v. Eisenmayer

• Decision Date: 06 July 1927
• Docket Number: No. 4282.,4282.
• Citation: 297 S.W. 460
• Parties: CITY OF SPRINGFIELD ex rel. KOCH v. EISENMAYER.
• Court: Missouri Court of Appeals

297 S.W. 460

CITY OF SPRINGFIELD ex rel. KOCH v. EISENMAYER.

No. 4282.

Springfield Court of Appeals, Missouri.

July 6, 1927.

Rehearing Denied August 16, 1927.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Suit by the City of Springfield, on the relation of V. E. Koch, against J. W. Eisenmayer. On suggestion of the death of defendant, the suit was revived against Lillie H. Eisenmayer and others, executrix and heirs of the deceased. From a judgment for defendants on the pleadings, plaintiff appeals. Reversed and remanded for new trial.

R. A. Pearson, of Joplin, and Fred A. Moon and W. R. Self, both of Springfield, for appellant.

Barbour, McDavid & Barbour and Schmook & Sturgis, all of Springfield, for respondents.

BAILEY, J.

This is a suit based on a special tax bill for street paving. The petition was filed in the circuit court of Greene county, June 14, 1919, and was continued from term to term, finally resulting in a judgment for defendants in December, 1926, on trial to the court. Plaintiff has appealed.

The record shows the trial court sustained defendants' motion for a judgment on the pleadings. The petition was in conventional form, alleging, among other things, that on January 15, 1914, a special tax bill, filed with the petition, was issued by the proper officers of the city of Springfield to plaintiff V. E. Koch; that the tax bill was issued in pursuance of an assessment for paving on both sides of Broad street, against certain real estate (described by metes and bounds), in the city of Springfield, which was liable for the costs of the improvement; that the tax bill constituted a lien against said real estate in the sum of $1,353; that J. W. Eisenmayer was the owner. Judgment was prayed for that amount. On suggestion of death, the action was revived against the present defendants, being the executrix and heirs of J. W. Eisenmayer, deceased.

The amended answer admitted the allegations of the petition, but alleged further that the east 23 feet of the paving, for which said special tax bill was issued, "was and is constructed on the defendants' private property, by reason of which fact said special tax bill sued on is null and void."

The reply sets up that the property upon which the paving was constructed was a recognized, accepted, and occupied street of Springfield, and by long continued user, with assent of former owners thereof, was dedicated to the public, and defendants are estopped to deny that it is such public street. It appears that the trial court must have indicated it would sustain a motion for judgment upon the pleadings, whereupon plaintiff offered to prove Broad street was a public thoroughfare of Springfield, and that part of the ground belonging to Eisenmayer had become a part of the public street. Objection was made on the theory that such proof sought to contradict a specific allegation of ownership alleged in the petition, and that plaintiff was estopped to controvert the material allegations in his petition that defendants owned the ground in question. No ruling was made on the offer or objection. A further offer of proof was then made—

"That the description in the tax bill is by metes and bounds, and is extended on the west side into the middle of the street, including part of the pavement, and on the east side to said median line; and as to the objection of the defendants to the petition of the plaintiff, that does not affect the liability of the defendant, or the obligation of the land to pay for the payment of this improvement, and we ask that the court, in entering judgment for the plaintiff on the tax bill, correct and modify the description by describing the west line as coincident with and abutting the property of the defendants, and we suggest that the defendants do not contend that it is not a public street. The improvement has been made, and the defendants have benefited thereby, and the property would be liable therefor, and that the irregularity in the description is a mere formal misprision, and in no way affects the substantial rights of the defendants. We offer at this time to amend the petition so as to show that the description in the tax bill includes by a misprision and inadvertently a portion of the street in front of the defendants' property, that it is entirely within the province and power and discretion of this court, as a court of equity, and we ask the court, as a court of equity, to amend and correct the description in the tax bill and render judgment thereon.

"By Mr. Barbour: We object to that for the same reason; under the charter of the third class, or second class either, the court has no power to amend a description, and the plaintiff himself could not amend now."

No ruling was made on this offer. The special tax bill was not offered in evidence. At this stage of the trial the court sustained the motion for judgment on the pleadings. It is clear that a reading of the petition does not indicate that any part of the improvement was on defendants' private property. The answer, however, alleges that to be a fact. The reply, in effect, admits the paving is on a portion of the land described in the petition, but sets up adverse user thereof and a dedication by prescription. The offer of proof establishes the fact that the description of the land contained in the petition and tax bill and alleged to be owned by defendants was in fact partially covered by the street pavement or improvement upon which the tax bill is based. Assuming that plaintiff might be able to prove that portion of defendants' land, upon which a part of the street improvement was made, was in fact a public thoroughfare, it is defendants' contention that plaintiff is bound by the allegation of ownership contained in his petition; that the petition and tax bill both describe a tract of ground which includes one-half the pavement or street improved and plaintiff cannot contradict the solemn allegations of the petition that defendant is the owner thereof; that the pavement being on ground which, as is alleged, belonged to defendants, the special tax bill issued against the abutting property in payment for the...