Clay County Bank v. Health Culture Co.
| Decision Date | 29 April 1940 |
| Citation | 139 S.W.2d 1049,234 Mo.App. 1142 |
| Parties | CLAY COUNTY STATE BANK, A CORPORATION, APPELLANT, v. THE HEALTH CULTURE COMPANY, A CORPORATION, ET AL., RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Clay County.--Hon. James S. Rooney Judge.
Judgment reversed and cause remanded.
John W Moore, Robert Moore and Richard Moore for appellant.
(1) Each count of plaintiff's petition states all facts necessary to a good cause of action independently of the tax bill copied therein and if the copy of such tax bill and allegations as to correction be disregarded. Clay County State Bank v. Health Culture Co., 111 S.W.2d 195. (2) The correction, by the city clerk, of the error made by him in issuing the tax bills was specifically authorized, and the tax bills having sued on not only did not divest him of this power but extended the limitation on the lien of the tax bills in all respects. Sec. 6841, R. S. Mo., 1929; Stumpe v. City of Washington, 54 S.W.2d 731; Mound City v Melvin, 205 S.W. 254; Riley v. Stewart, 50 Mo.App. 594; Galbreath v. Newton, 30 Mo.App. 380; Galbreath v. Newton, 45 Mo.App. 312; Coatsworth Lumber Co. v. Owen, 172 S.W. 436, 186 Mo.App. 543. (3) This is a suit in equity. Koch v. Clyce, 92 S.W.2d 985, l. c. 994; Bates v. Comstock Realty Co., 306 Mo. 312, 267 S.W. 641. (4) The court had power to grant general equitable relief, including the power to permit or order the correction. First National Bank v. Aquamsi Land Co., 70 S.W.2d 90, l. c. 100; Stumpe v. City of Washington, 54 S.W.2d 731; City of Rockport v. McMichael, 288 S.W. 785, 221 Mo.App. 917.
C. H. Kohler and Lawson & Hale for respondents.
(1) None of the seven counts of plaintiff's petition states a cause of action for the reason that the tax bills described in each of them are shown to be payable in five equal annual installments and do not show either in the tax bill or in the petition that such provision was timely and properly requested by the landowner. In the absence of such request, such issuance is unauthorized by statute and does not toll the running of the five-year Statute of Limitations. Sec. 6841, R. S. Mo., 1929; 37 C. J. 1217, sec. 722; Pollen et al. v. Ford Instr. Co., 108 F.2d 762, 763. (2) Counts 2 to 7, both inclusive, of plaintiff's petition are subject to general demurrer for the reason that the tax bills described in each of said counts include more than one tract or parcel of land, and neither the tax bills nor said counts of said petition allege that said separate lots, tracts or parcels described in each count of the petition in fact constitute, by reason of their use, but one tract. Sec. 6841, R. S. Mo., 1929; Barber Asphalt Pav. Co. v. Peck et al., 186 Mo. 506, 516-17; Fruin v. Meredith, 122 S.W. 1107, 1113; Cushing v. Powell, 109 S.W. 1054; City of Cameron v. Pixlee et al., 211 S.W. 96. (3) The purported amendments of the tax bills sued on in counts 3 to 7, inclusive, of the petition, were and are nullities. The tax bills being void ab initio, there was nothing which could properly be amended. City of Cameron v. Pixlee, 211 S.W. 96; Eyerman v. Blakesley, 13 Mo.App. 407, 410. (4) The purported amendments of the tax bills sued on in counts 3 to 7, both inclusive, are void for the further reason that at the time of such purported amendments the five-year Statute of Limitations had run against said tax bills, they were therefore void and there was nothing to amend. City of Springfield v. Eisenmayer, 297 S.W. 460, 462; Sec. 6841, R. S. Mo., 1929.
This action, commenced on June 2, 1934, is in seven counts, each on an installment tax bill issued by the City of Excelsior Springs, a city of the third class. Said bills are for the grading, paving, curbing and otherwise improving Bluff Street in said city. Plaintiff is the owner of the bills by assignment. Defendants are the owners, mortgagees or otherwise interested in the property, which is subject to the lien of the tax bills.
After the suit was filed the tax bills were corrected in a manner hereinafter described. On June 12, 1939, plaintiff filed an amended petition, which pleaded the tax bills as corrected. Defendants demurred to each count of the amended petition on the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was sustained by the court as to each count. Plaintiff amended the prayer of its petition by interlineation to include a prayer for an order correcting said tax bills and for general relief. Defendants' demurrer was refiled and again sustained. Plaintiff refused to plead further, resulting in a judgment dismissing its cause. It has appealed.
Count One of plaintiff's amended petition, as amended by interlineation, alleges that the City of Excelsior Springs is a city of the third class; that on June 25, 1928, the council adopted and the Mayor approved, resolution No. 223 declaring the improvement to be necessary; that such resolution provided for a hearing on July 9, 1928, upon the necessity for the work; that said resolution was duly published; that on July 9, 1928, such hearing was held and the council adopted and the Mayor approved another resolution No. 227 reaffirming the necessity of such work; that on said last mentioned date, the council passed and the Mayor approved Ordinance No. 3200 providing for the doing of such work; that thereafter the city entered into a contract for the doing of such work; that said work was done according to the contract, plans, specifications and ordinances, and said street so paved, etc., for a distance of not more than 1200 feet so as to connect at both ends with other paved streets; that said work was accepted and the cost apportioned by the city engineer and accepted and apportioned by the council by ordinance duly adopted; that on September 10, 1928, the city, through its clerk, issued its special tax bill certifying that the real estate therein described was charged with the sum of $ 179.95 as a special tax for such work and that such amount was levied and assessed as a special tax against such real estate. The tax bill is then set forth in haec verba.
The petition then alleges that on June 29, 1938, the city clerk corrected, by interlineation, an error made by him in issuing said tax bill and certified the date of making such correction on the margin thereof. The tax bill, as corrected, was set forth in haec verba.
The petition then alleges that payments had been made upon the tax bill and that the real estate was charged in favor of plaintiff with the balance of said tax bill, with interest, and that all claims of defendants are subject thereto.
Plaintiff prays that the correction be approved; that the court order said tax bill corrected accordingly, render special judgment for the enforcement of the lien of such tax bill, and for general relief and costs.
Count Two of the petition contains the same allegations as does Count One, except that it is upon a different tax bill, and alleges that the bill was issued against "W 1/2 of 4.5 Lot 13 Block" in the original old town now Excelsior Springs.
Counts Three to Seven inclusive are identical with Count One, except they show a single tax bill was issued against four lots in each instance. They also contain allegations that on February 19, 1934, pursuant to ordinance and after such tax as to each lot had been reapportioned and relevied and credits for payments given, amended tax bills were issued covering separate lots mentioned in the original tax bill, and a new tax bill, covering but one lot, is set forth in haec verba.
It is shown in the petition that there was one amendment made by interlineation by the clerk common to each of the tax bills mentioned in the seven counts of the petition; that this amendment, made on June 2, 1938, after the suit was filed, consisted of striking out the recitation contained in each tax bill relating to the history of the proceedings and concerning passage of the ordinance, and its publication, declaring the necessity for the work, and subsequent proceedings; such matter so stricken out reading as follows: "that a majority of the resident owners of the lands would be liable for the costs of the improvements at the date of the passing of said resolution (declaring the work necessary) who also owned a majority of the front feet owned by residents of said city abutting on that part of said street so proposed to be improved, did not, within ten days after the date of the last publication, file with the city clerk of said city their protest against such improvement; that the Council of Excelsior Springs, Missouri, in pursuance of said resolution did, on the 9th day of July, 1928, pass Ordinance No. 3200," and inserting in lieu thereof: "that anyone desiring to do so might appear before the council on the 9th day of July, 1928, and be heard on the question of the necessity of such work;" that the council, pursuant to said resolution "did on the 9th day of July, 1928, after hearing everyone desiring to appear and be heard on the question of the necessity of said work, pass a resolution reaffirming the necessity for doing such work, and on the 9th day of July, 1928, pass Ordinance No. 3200."
It would appear that the original tax bills were issued under the theory that the proceeding was under section 6842, Revised Statutes of Missouri, 1929, which provides, generally, for the issuing of tax bills by cities of the third class. The amendment was on the theory that the proceeding was under section 6843, Revised Statutes of Missouri, 1929, relating to the improvements of streets for not more than 1200 feet so as to connect at both ends with other improved streets.
As Count One covered a tax bill issued against but one lot there was...
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