City Trust Co. v. Cunningham

• Decision Date: 24 May 1928
• Docket Number: No. 4275.,4275.
• Citation: 7 S.W.2d 456
• Parties: CITY TRUST CO. v. CUNNINGHAM et al.
• Court: Missouri Court of Appeals

7 S.W.2d 456

CITY TRUST CO. v. CUNNINGHAM et al.

No. 4275.

Springfield Court of Appeals. Missouri.

May 24, 1928.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the City Trust Company against Nanna Cunningham. Judgment for plaintiff, and defendant appeals. On the appeal, Clinton H. Cunningham and others, as heirs of deceased defendant, were substituted for defendant. Affirmed.

C. G. Shepard, of Caruthersville, for appellants.

Ward & Reeves, of Caruthersville, for respondent.

COX, P. J.

This case was heard at a previous term and an opinion written. Motion to set aside the judgment in this court was filed together with a suggestion of the death of the then defendant, Nanna Cunningham. Our judgment was set aside and the voluntary appearance of the heirs of Nanna Cunningham entered, and the case revived against them. The case was then reargued and submitted. We have again gone carefully over the whole case, and have found no reason to change our opinion as to the proper disposition of the case in this court. We therefore adopt the opinion as formerly written, which is as follows:

Action to foreclose a lien of a special tax bill issued for grading, paving, and guttering a street in the city of Caruthersville. Trial by jury resulting in a verdict and judgment for plaintiff. Defendant appealed.

At the beginning of the trial, defendant objected to the introduction of any testimony upon the ground that the petition did not state a cause of action. This was overruled, and exception saved. We have examined the petition, and do not deem it necessary to set it out or discuss its allegations at length. We think the objection of defendant to the introduction of any testimony under the petition was properly overruled.

The answer was quite lengthy, and we shall not reproduce it here. Suffice it to say that the defenses pleaded were sufficient to permit defendant to urge as grounds for reversal of the judgment all the grounds properly assigned as error and covered by the motion for new trial. The assignments of error are as follows:

First. Overruling defendant's objection to the introduction of any evidence.

Second. The court erred in not holding that the lien of the tax bill had expired prior to the time of filing the suit.

Third. The court erred in holding that part of section 946 of the general ordinances of the city which provides that the council shall require any contractor doing work to guarantee that such improvement will last for a specified time and to give bond for the faithful performance of any obligation was not binding on the city council and the contractor.

Fourth. The court erred in admitting incompetent, irrelevant, and immaterial evidence offered by the plaintiff.

Fifth. The court erred in rejecting competent and relevant and material evidence offered by defendant.

Sixth. The court erred in not fully and completely reprimanding counsel for plaintiff for propounding incompetent and prejudicial questions to C. H. Cunningham, defendant's husband.

Seven and eight refer to giving and refusing instructions.

Ninth. The damages assessed by the jury are excessive.

Tenth. The court erred in not sustaining the objections of defendant to the closing argument of counsel for plaintiff.

Assignment No. 1 has already been disposed of adversely to appellant.

Assignments 4 and 5 follow the language of the motion for new trial, and are not sufficient to preserve for review in this court the action of the trial court in admitting or rejecting evidence. Bartner v. Darst (Mo. Sup.) 285 S. W. 449; Robinson v. Railroad (Mo. App.) 288 S. W. 109.

We could also dispose of assignment No. 3 on the same basis as the court refused to admit in evidence the ordinance therein mentioned, and the motion for new trial does not specifically call the court's attention to the exclusion of this ordinance, but, in view of the fact that counsel stated in the argument that there are other cases awaiting the result in this case, we shall notice this assignment. The ordinance offered in evidence by defendant and excluded by the court is section 946 of the general ordinances of the city, and that part of it which it is insisted applies in this case and renders the tax bill void is as follows:

"* * * The council shall require any contractor doing the work to guarantee that such improvement will last for a specified length of time to be fixed by the council, and during such term will be kept in repair and require the contractor to give the city approved bonds for the faithful performance of any obligation."

Section 8324, Stat. 1919, relative to grading and paving streets, contains the following provision:

"The council shall have the power to require any contractor doing the work, to guarantee that an improvement will last for a specified term of years, and during such term will be kept in repair, and to require the contractor to give to the city approved bonds for the faithful performance of any obligation."

It will be observed that the statute only grants the power to require the contractor to guarantee that the improvement, such as a pavement on a street, will last for a specified term of years, but it does not require the council to take such action. The matter is entirely within the discretion of the council. There is no necessity for a general ordinance on the question, for, if the council desired to require such a guaranty, it could easily be done by inserting that provision in ordinances providing for the improvement in each case. We do not think the general ordinance is self-enforcing. Neither the statute nor the general ordinance makes any provision as to when the guaranty shall be furnished, whether at the time of the execution of the contract or when the work is completed and accepted. It would seem but fair that, if a guaranty were to be required under any ordinance providing for a specific improvement, notice of it should be brought home to the contractors at or before the time they should prepare their bids, so they could understand all that was required, and take that matter into consideration in making up their bids. The general ordinance is in itself incomplete. It does not fix any length of time that the guaranty shall cover, but only provides that the council shall, when it undertakes in the future to improve a street, require a guaranty to be given by the contractor. When the city undertook to improve the street here involved, it could only proceed in the manner provided by statute, and, after the resolution declaring the improvement necessary had been adopted, it could only provide for the improvement by ordinance. If, when it did proceed by ordinance, it was at the time bound by said section 946 of the general ordinances of the city, then, in that event, the effect of said general ordinance was to compel the council at a future date, in enacting another ordinance, to include certain provisions in it. We do not understand that a city council can by one ordinance bind itself to pass another ordinance at some time in the future. The statute above which grants discretionary power to the council must mean that the discretion is to be exercised at the time the improvement is to be made, and, since the council did not, at that time, violate the statute, it could not be bound by the general ordinance sought to be invoked here. Webb City v. Aylor, 163 Mo. App. 155, 163-164, 147 S. W. 214; State ex rel. v. Gordon, 217 Mo. 103, 114, 116 S. W. 1099.

Under assignment No. 2 appellant contends that the lien of this tax bill expired in one year, and, since suit was not filed within that time, plaintiff cannot recover. The statute, section 8323, Stat. 1919, provides that the lien of tax bills of this character shall extend for five years. The ordinance providing for the pavement in this case recited that the lien of tax bills when issued in payment therefor should extend for one year, and counsel for appellant insists that the ordinance prevails over the statute, and cites Springfield ex rel. v. Kirby, 73 Mo. App. 640, and Coatsworth Lumber Co. v. Owen, 186 Mo. App. 543, 173 S. W. 437, to sustain his position. Both of these were cases relative to suit upon tax bills under statutes which left it to the discretion of the council to fix a rate of interest, and none had been fixed in one case and none was called for in the tax bill. It was there held that no interest should be recovered in a suit on the tax bill. In the other case, the bill provided that it should only bear interest after presentation for payment. The tax bills were not presented for payment prior to filing suit, and it was held that interest could only be charged from date of filing the suit. All that these cases hold is that, when the statute places a discretion in the council, then the contractor who sues on the tax bill is bound by the provisions of the tax bill on the question. That is not this case. Here the statute fixes the time that the lien shall run, and the council was powerless to change it. The contract in this case was by ordinance accepted and approved by the contractor, and this contract ordinance contained no reference to the lien of the tax bills to be issued in payment for the work. The ordinance levying the tax after the work was finished and approved directed the city clerk to issue special tax bills "as provided by statute." This the clerk did. The statute fixed the duration of the lien at five years. It also required the clerk in issuing the tax bills to recite therein the duration of the lien. This tax bill contains the recital that its lien should continue for a period of five years from date, unless sooner paid. The statute could not be repealed or its positive mandate changed by ordinance. Even if the provision that the lien should extend for one year had been incorporated in the ordinance constituting the contract and which was accepted by the...