Dickey v. Porter

• Decision Date: 30 March 1907
• Citation: 101 S.W. 586,203 Mo. 1
• Parties: DICKEY v. PORTER et al.
• Court: Missouri Supreme Court

101 S.W. 586

203 Mo. 1

DICKEY v. PORTER et al.

Supreme Court of Missouri.

March 30, 1907.

1. PLEADING—PLEA OR ANSWER—INCONSISTENT DEFENSES.

Defendants were estopped to assert a claim made under a general denial that plaintiff did not acquire ownership of the special tax bill sued upon, where in an affirmative defense they alleged plaintiff, before bringing the action, assigned the bill to another, who assigned it to a bank.

2. MUNICIPAL CORPORATIONS — ASSESSMENT FOR IMPROVEMENTS—ENFORCEMENT—ACTION —SUFFICIENCY OF EVIDENCE.

Evidence, in an action upon a special tax bill, held to sustain a finding that the original holder assigned it to plaintiff.

3. PLEDGES—ENFORCEMENT OF RIGHT OF ACTION PLEDGED—REAL PARTY IN INTEREST.

That plaintiff had pledged the special tax bill sued upon as collateral security for a note for a less sum, there being no default in the payment of the note, did not prevent him from suing to enforce the tax bill, and under Rev. St. 1899, § 540 [Ann. St. 1906, p. 575], requiring

actions to be prosecuted in its name of the real party in interest, the action was properly brought by him at law.

4. MUNICIPAL CORPORATIONS —PUBLIC IMPROVEMENTS—TAX BILLS—EXECUTION.

Under Kansas City Charter, art. 9, § 15, all special tax bills must be made out and certified by the president of a board, or in his name by any person authorized by resolution, and a clerk was authorized to perform that function. Held, that a tax bill was not void because the clerk did not make out the bill, but merely signed his name under the president's, which was executed by another clerk.

5. SAME—SUFFICIENCY OF TAX BILL.

Kansas City Charter, art. 9, § 10, provides a board shall compute the whole cost of a district sewer, apportion it against the lots of land in the district according to their respective area, and issue a tax bill against each lot to the contractor, but does not specify the contents of the bill. Held, that a bill was not void for failing to recite the total area of lands in the district subject to assessment, or any affirmative or general statement that the specific land was charged according to its area; it being unnecessary for the bill to show on its face every step essential to its validity.

6. APPEAL — OBJECTIONS IN TRIAL COURT — SUFFICIENCY.

An objection that a special tax bill sued upon is void upon its face was not timely made, where the answer did not plead such defect, where no objection was made to the bill's introduction in evidence, and the court was not asked to declare it void.

7. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS—EFFECT OF CONTRACTOR'S CONTRACT WITH ANOTHER—CONTRACTS.

That a sewer contractor contracted with plaintiff, from whom he borrowed money, to assign tax bills to be received for a public improvement, and plaintiff employed an engineer to see that the work was done so as to sustain the validity of the tax bills, did not show a transfer or subletting of the contractor's contract with the city, in violation of its terms.

8. APPEAL — SCOPE OF REVIEW — WAIVER OF OBJECTIONS.

Where, in an action on a special tax bill, defendants did not object when the bill was offered in evidence that the contract under which plaintiff acquired it from the original holder was usurious, and did not plead nor ask a declaration of law that it was usurious, the objection cannot be determined on appeal, since Rev. St. 1899, § 864 [Ann. St. 1906, p. 808], prohibits the Supreme Court from regarding any exceptions except such as have been expressly decided by the trial court.

9. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — ORDINANCE — INCORPORATION OF PLANS AND SPECIFICATIONS BY REFERENCE.

Where an ordinance provides a sewer shall be constructed in conformity to plans and specifications on file in the office of the board of public works, the plans and specifications are as much a part of the ordinance as if set forth therein in detail.

10. SAME—SEWERS—REQUISITE OF ORDINANCE.

Though a city charter requires sewers to be of such dimensions, material, etc., as shall be prescribed by ordinance, a tax bill issued for a sewer improvement was not void because the ordinance did not specify the thickness of the sewer pipe, where the form of contract on which the bidding was based and which was entered into specified the thickness, and it had been the uniform custom for years to use but one character of pipe; there being no pretense that the contractor used an inferior quality.

11. APPEAL—REVIEW—MATTERS NOT RAISED BY PLEADINGS.

On appeal on a suit upon a special tax bill issued for a sewer improvement, its validity is not open to question because the ordinance ordering the improvement did not specify the thickness of the pipe to be used, where the objection was not raised by answer, and the declarations of law asked presented no such issue to the circuit court.

12. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS—SEWERS—REQUISITE OF ORDINANCE.

A special tax bill for a sewer improvement was not void because the ordinance ordering the improvement did not specify the amount of masonry to be used in the improvement; it appearing that that could only be determined while excavating in the construction of the improvement, and that only an estimate could be made— the contract price being based on cubic measure.

13. INTEREST—TAX BILLS—JUDGMENT.

Since the Kansas City charter allows 10 per cent interest where the debtor on a special tax bill issued for a sewer improvement fails to pay it when due, and article 9, § 18, provides judgment shall bear the same rate as the tax bill, where defendants defaulted in the payment of such a bill, the judgment properly bears 10 per cent. interest.

In Banc. Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Walter S. Dickey against Tellie D. Porter and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Elijah Robinson, Rozzelle, Vineyard & Thatcher, and R. H. Field, for appellants. Clarence S. Palmer and Karnes, New & Krauthoff, for respondent.

GANTT, J.

This is an action begun in the circuit court of Jackson county, by the plaintiff against James B. Porter and Tellie D. Porter, his wife, to enforce a certain tax bill issued on the 30th of November, 1896, and numbered 851, by the board of public works of Kansas City, in part payment for the construction of a certain sewer in said city as provided by Ordinance No. 7,109 of the said city approved January 11, 1896, against certain real estate therein described. The said tax bill was payable in four equal installments of $2,446.98¾ each. Judgment was obtained in the circuit court of Jackson county, and the defendants appealed to this court. Since the appeal was lodged in this court, one of the appellants has died, leaving as his sole heirs at law his widow, Tellie D. Porter, and his three children, Jesse Lee Porter, James Burrel Porter, and Emily Hall Porter. J. Lee Porter, a brother of the deceased, has been appointed, and is the duly qualified and acting administrator of his estate. Proper steps have been taken in this court to revive the action against the widow and heirs and administrator of James B. Porter, deceased.

The petition, in substance, states that the defendants are the owners of the real estate described in the petition as a part of the southeast quarter of the northeast quarter of section 17, township 49, range 33, and particularly described by metes and bounds, and it is alleged that the same is now platted as lots 1, 2, 3, and lots 8 to 14, inclusive in block 2, and all of blocks 3, 4, and 5, and the west half of block 6, Creston. That said tax bill was issued by the board of public works on November 30, 1896, and numbered 851, against said described real estate in part payment for constructing district sewer in sewer district No. 59, as provided by Ordinance 7,109 of Kansas City, Mo., entitled "An ordinance to construct district sewer in sewer district 59," approved January 16, 1896. That it appears from said tax bill and plaintiff states the fact to be that said work was completed according to contract by E. N. Ford, contractor, to whom this special tax bill was issued in part payment therefor, and the sum mentioned has been duly assessed and proportioned against the aforesaid land, being the exact amount chargeable against said land; that said tax bill is payable in four equal installments of $2,446.98¾ each, on presentation of the three installment coupons thereto attached at maturity thereof; the fourth and last installment of $2,446.98¾ being payable on the 31st day of May, 1900, with interest thereon as herein mentioned, on the surrender and cancellation of said tax bill. And it is further provided that said tax bill shall bear interest from the date of the issue thereof at the rate of 7 per cent. per annum, and when any installment shall become due and collectible, as therein provided, interest thereon and on all unpaid installments shall be due and collectible to that date. It is further provided in said bill that, if any installment of said tax bill or interest thereon be not paid when due, then all the remaining installments shall become due and collectible, together with the interest thereon, at the rate of 10 per cent. per annum from the date of issue of said tax bill, less the sum of any interest that may have been already paid on such installment. It is alleged that the defendants have failed and refused to pay any part or portion of said tax bill or of any of the installments thereon, and that the same, and each and all of the installments thereof, are due and payable with interest at the rate of 10 per cent. per annum from November 30, 1896. That said tax bill had been assigned by the said E. N. Ford, contractor, to the plaintiff.

Plaintiff prayed judgment for the amount of said tax bill, $9,787.95, with interest from October 30, 1896, at 10 per cent. and costs, and for the enforcement thereof against the real estate aforesaid. Attached to said...