City of St. Louis v. Stoddard

• Decision Date: 12 February 1884
• Citation: 15 Mo.App. 173
• Parties: CITY OF ST. LOUIS, Appellant, v. ASA P. STODDARD, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 173

CITY OF ST. LOUIS, Appellant,

v.ASA P. STODDARD, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1884.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

LEVERETT BELL, for the appellant.

BAKEWELL, J., delivered the opinion of the court.

The petition herein was filed March 31, 1882, and contains the following allegations: The plaintiff is, and since 1822 has been, a municipal corporation, having power to open and establish streets within its limits, and to appropriate private property therefor. Under municipal ordinances of said city, numbered 9150, which was approved July 15, 1874; 9899, approved January 28, 1876, and 10,076, approved July 7, 1876, which ordinances are set out in the petition, proceedings were begun on November 26, 1876, before the land commissioner of the city of St. Louis, in conformity with the charter of that city of March 4, 1870, as amended by the act of February 22, 1875, to open Jefferson Avenue from Market Street to Hebert Street. Commissioners were duly appointed in the proceedings, and duly filed their report. This report was duly approved and confirmed by the land commissioner on March 26, 1877. Special tax bills were duly issued by the land commissioner for the benefits assessed in said proceedings. The damages allowed therein for the property taken for the street were fully paid, out of the city treasury, to the persons entitled thereto. On all special taxes remaining unpaid at the expiration of thirty days after due notice thereof a judgment was rendered by the land commissioner, as required by the act of February 22, 1875. Under said act the sums to be paid by the owners of property specially benefited by the appraiser's report are a lien on the property charged, and shall be collected, as provided by ordinance, by the sale of the property, and when collected shall be paid into the city treasury. By ordinance 10,811, approved July 9, 1878, it is provided that unpaid special tax bills for benefits in street opening proceedings shall be collected by suits instituted in the name of the city of St. Louis by the city counsellor. In said proceedings the appraisers ascertained and reported that a lot in city block 972, fronting 150 feet on Dickson Street by a depth of 118 3/12 feet, the boundaries of which lot are set out in the petition, was benefited by the opening of Jefferson Avenue, as established by ordinances numbered 9150, 9899, and 10,076, to the amount of $220, which amount the commissioner assessed against said lot. The defendant owns said lot. A special tax bill for $220, and $3.46 costs, was duly issued by the land commissioner and delivered to the collector of the city of St. Louis on April 5, 1877, a certified copy of which bill is filed as an exhibit with the petition. The prayer is for a decree establishing the amount of said special tax bill and interest and costs thereon, and costs of this proceeding, as a special and first lien against the property in question, and for an order of sale by the sheriff to satisfy said amount.

The defendant demurred to the petition on nineteen grounds. The demurrer was sustained; and plaintiff declining to plead over, there was final judgment for the defendant.

The learned counsel for the defendant has not complied with the rule of court requiring the respondent to file a statement and brief. He has suggested nothing, whether orally or otherwise, in this court, in support of his demurrer, and we are left to consider each ground of demurrer and to conjecture as to which particular ground or grounds of demurrer were found to be fatal to the petition by the trial court.

The act of February 22, 1875, provides (sect. 4) that: “The sums to be paid by the owners of property specially benefited by the improvement, as finally ascertained, shall be a lien on the property so charged, from the date of the judgment rendered therefor by said land commissioner, and shall, with costs, be collected as shall be provided for by ordinance, but only by the sale of said property, or so much thereof as shall be necessary to satisfy such judgment and costs.” The act also provides for an appeal to the circuit court within ten days from the final judgment of the land commissioner, in every case in which exceptions were taken. The reversal of any judgment is to affect only the case embraced in the appeal; parties not appealing are to be forever barred by the judgment in their respective cases. The act further provides (sect. 6) that: “When the proceedings in any case have been finally approved by the land commissioner he shall deliver the same to the city council, and the city council shall, within six months thereafter, make an appropriation for the payment out of the city treasury of all damages assessed in favor of the owners of the property appropriated; and the land commissioner shall immediately upon his final approval of said report make out special tax bills in accordance with the report of the appraisers against all parties, as far as known, who are charged with benefits, and add the costs thereto, and shall deliver said tax bills to the city collector, whose return thereon shall be proof of the facts therein stated; and if any special tax bills are not paid within thirty days after notice is given (said notice to be given by publication in said newspapers for three days consecutively, notifying all parties interested that the said tax bills are in the hands of the city collector for collection), the land commissioner shall render judgment in favor of the city against the owners, as far known ( sic), in or each ( sic) lot or parcel of ground charged with benefits; and in case the owners be unknown, then against the property by description of the sum or sums assessed against the same; and for all sums not paid within the time required by said notice he shall issue an execution thereof to said marshal for the sale of the property charged with said sum for the satisfaction thereof, so ( sic) much thereof as needful therefor; such sale shall be made and a deed executed thereunder and delivered to the purchaser by the city marshal, as provided for in case of ordinary execution of courts of record; such deed...