City of St. Louis ex rel. Seibert v. Allen

• Decision Date: 31 March 1873
• Citation: 53 Mo. 44
• Parties: CITY OF ST. LOUIS to use of AUGUST SEIBERT, et al., Respond. ent, v. THOMAS ALLEN, Appellant.
• Court: Missouri Supreme Court

53 Mo. 44

CITY OF ST. LOUIS to use of AUGUST SEIBERT, et al., Respond. ent,

v.THOMAS ALLEN, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Dryden & Dryden, for Appellant.

I. The Court erred in rendering a personal judgment against the defendant, instead of a judgment in rem.

The judgment ought always in these cases to be limited to the property condemned to pay the tax;--upon any other theory it may be ruinous to own inferior property on a street to be improved.

II. The petition sets out several distinct causes of action, and the verdict for an entire and gross sum cannot be sustained. (Brownell vs. Pacific R. R., 47 Mo., 239.)

III. If the bills were recoverable then the plaintiffs were entitled to recover interest thereon till judgment recovered at the rate of 15 per cent., but after the judgment the sum recovered under the statute would bear but 6 per cent. interest. (W. S., 783, §§ 2-3

F. & L. Gottschalk, for Respondents.

I. As to the power to render a personal judgment. (See Sess. Acts 1866, p. 295; 1867, p. 73, § 10; 1870, p. 451; 1871, p. 193; City of St. Louis vs. Clemens, 36 Mo., 467; City of St. Louis vs. De Noue, 44 Mo., 136; City of St. Louis vs. Armstrong, 38 Mo., 29; Inhabitants of Palmyra vs. Morton, 25 Mo., 593; Egyptian Levee Company vs. Hardin, 27 Mo., 495; City of St. Joseph vs. Anthony, 30 Mo., 538; Fowler vs. City of St. Joseph, 37 Mo., 239; Lockwood vs. City of St. Louis, 24 Mo., 20; Dillon vs. Munic. Corp., p. 617, n. and § 653, and notes § 660; Sheehan vs. Good Samaritan Hospital, 50 Mo., 155; Litchfield vs. McComber, 42 Barb., 288; Dallam vs. Oliver, 3 Gill., 445; Lafayette vs. Fowler, 34 Ind., 140; Taylor vs. Palmer, 31 Cal., 666.)

The City charter provides, that such tax bills shall bear interest at the rate of 15 per cent. if not paid within 6 months from their issue, and shall bear such interest “until paid” (Sess. Acts 1866, p. 296, § 11.)

VORIES, Judge, delivered the opinion of the court.

This action was brought by the respondents against the appellant in the Circuit Court of St. Louis County, to recover the amount of two several tax bills for work done by the respondents under a contract with the City of St. Louis, in curbing, guttering and macadamizing, done on what is called the Gravois road, in front of and adjoining certain lots of ground belonging to appellant, and upon which said lots said tax bill were assessed as a special tax under the charter and ordinance of the City of St. Louis.

There were two counts in the petition, one on each of the two tax bills.

It was substantially charged in the 2d count of the petition that the appellant was the owner of a lot of ground lying and being in the City of St. Louis, to-wit: All that lot or parcel of ground, which is bounded East by Gravois road, North by line running from the point where the north line of Gravois road intersects the western line of Second Carondelet avenue westwardly to Jefferson avenue and parallel with said Allens south line, South by Allens south line, and West by Jefferson avenue, in blocks numbered 785-1343-1344 and 1345 of said city. That said city by authority of ordinance numbered 5777 & 5825 passed in pursuance of its charter, did contract with respondents to do certain curbing, guttering and macadamizing on Gravois road, in front of and adjoining the above described property of appellant, and did also by ordinance No. 5399, provide for the material, with which and the manner and general regulations in and under which said work was to be done; that in pursuance of said contract and ordinance said respondents did work and labor, and furnished materials, to the amount of seventeen hundred and thirty 96-100 dollars, the particulars of which will appear by the certified ac count filed. That after the work was completed said sum of $1,730.96-100 had been assessed as a special tax against said property by the said City of St. Louis, and that by virtne of an act of the General Assembly of the State entitled “An act supplementary to the several acts incorporating the City of St. Louis, approved January 16th 1860,” and also by virtue of an act of said assembly entitled “An act to revise the City Charter of the City of St. Louis, approved March 19th, 1866, said respondent is made liable for the same, and that the Engineer of said city also by virtue of said recited acts has issued and delivered to respondents a certified bill of such assessment against said property in the name of appellant as the owner thereof, which said bill is herewith filed. By means of all which the same became a lien against said property, in pursuance of the before recited acts. That said amount of $1,730.96-100, although demanded, remains unpaid and still due. Wherefore judgment is prayed for the amount of the tax bill with interest, &c., and that the lien against said lot be enforced, &c.

The other count of the petition is for another tax bill, and is assessed against the property, but in other respects very nearly similar to the one here set forth.

The answer of the defendant to the different counts of the petition were substantially the same. The answer denied, that Gravois road was a public highway, or that the ground on which the work was done, was or is part of the Gravois road or of any public highway, but that the said ground was at the time and still is, the real estate of the appellant, in no wise condemned to or otherwise dedicated to the public for the purpose of a public highway; that neither the city or respondent had any right to improve the same, or to charge the appellant or his property therewith. He denies that he, at the time of the doing of the work charged for, owned any such ground in city blocks numbered 1343-1344-1345 and 785, as is described in the petition. He denies that ordinance 5777 and 5825 were passed in pursuance of the charter of the city, or that it gave any authority to the city or its officers, to procure respondents to perform said work thereon, or that they in pursuance of the pretended contract, or of any valid contract, did work and labor or furnished material to the amount of $1,730-96-100 in front of, or adjoining the alleged property, or any property of respondent, or that the Engineer of said city ever computed the cost of the pretended work and assessed the same as a special tax against any adjoining property of appellant, or made out and delivered to respondents a certified bill of the same against said property for the amount against the same, as averred by respondents; or that said sum was demanded of appellant as alleged; or that said sum or any part thereof is a lien against the said property or any property of appellant, or that he became liable to pay the same.

To this answer a replication was filed denying, that said Gravois road was not a public highway, or that the city had no right to improve the same, and denied the affirmative alle gations in the answer.

A trial was had on the issue made in said Circuit Court in June, 1871, at Special Term.

The cause, after being heard, was submitted to a jury, who found for the plaintiff. The entry on the record being as follows:

“Now at this day come again said parties by their respective attorneys, and the jury sworn and impanneled herein also come, and the trial of this cause progressed, and being concluded, the jurors aforesaid upon their oaths aforesaid find the issue joined in favor of said plaintiffs, and assess their damages at the sum of five thousand five hundred and fifty-six dollars and twenty-seven cents.”

Judgment is then rendered by the court for the amount found by the jury, which said amount it is provided shall be enforced as a lien against all of the property named in both counts of the petition, thereby making the amount named in each tax bill, not only a lien on the land against which it is assessed, but also against the land named in the other account or tax bill.

After the rendition of this judgment, the defendant filed his several motions for a new trial, and in arrest of the judgment. In the defendant's motion for a new trial, it is set out as a cause for a new trial, amongst other causes, that the verdict of the jury is against the law, and against the weight of the evidence.

It is set out as cause for arresting the judgment, amongst other things, that “the verdict of the jury is not responsive to the issues. That the petition contains two distinct counts, in which distinct property is sought to be charged by the demands stated in said counts respectively, and yet the verdict is joint and the judgment is joint, charging the whole or joint demand on each several piece of said property.”

During the pendency of these motions, the plaintiffs and respondents here appeared in court, and remitted and released so much of said judgment, as attempted to enforce a lien against the property therein named, and as described in the petition; whereupon the court rendered a general judgment against the defendants for the amount named in the verdict, and ordered execution to issue thereon, after which the court overruled defendant's motions for a new trial and in arrest of the judgment. To the opinions of the court in overruling said several motions for a new trial, and in arrest of the judgment, the defendant at the time excepted. The cause was then appealed to the General Term of the Circuit Court of St. Louis County, where the said judgment so rendered by the Special Term of said court was affirmed, and the defendant has appealed to this court.

With the views that I have taken of this case, it will only be necessary to examine two questions growing out of the record in this case: 1st Was it proper for the court below to render a judgment upon the general verdict found by the jury upon the whole petition, without finding separately on each count in the petition; 2d Was the court authorized to render a general personal judgment against defendant upon the tax bills sued on and described in...