Eighth & Morgan Garage & Filling Station v. City of St. Louis

• Decision Date: 17 August 1938
• Docket Number: 34900
• Citation: 119 S.W.2d 202,342 Mo. 874
• Parties: Eighth & Morgan Garage & Filling Station, a Corporation, Lottie Realty & Investment Company, a Corporation, Bonded Realty & Investment Company, a Corporation, Remley Real Estate & Investment Company, a Corporation, Kalman Starr, Mike and Pauline Kutten, Edna E. Schilb, Annie Srenco, George Graf, L. H. Matthey, H. A. Kearney, Leo G. Hadley, Alice D. Hadley, Edith v. Goesling, Christine Cafferata, George Reppetto, Fred Fischer, M. Goldstein, Ella D. Plummer, C. J. and F. E. Briner, Cicman Realty & Investment Company, a Corporation, Louis Cicardi, Alex W. Hartman, Guardian of William Hartman, an Insane Person, Pinkus and Sadie Subowitz, Louis F. and Ada G. Korach, Louis F. and Israel Korach, Rose C. and Alice Clark, in behalf of themselves and others whose rights are affected in the same manner and who desire to join herein, Appellants, v. City of St. Louis, a Municipal Corporation
• Court: Missouri Supreme Court

119 S.W.2d 202

342 Mo. 874

Eighth & Morgan Garage & Filling Station, a Corporation, Lottie Realty & Investment Company, a Corporation, Bonded Realty & Investment Company, a Corporation, Remley Real Estate & Investment Company, a Corporation, Kalman Starr, Mike and Pauline Kutten, Edna E. Schilb, Annie Srenco, George Graf, L. H. Matthey, H. A. Kearney, Leo G. Hadley, Alice D. Hadley, Edith v. Goesling, Christine Cafferata, George Reppetto, Fred Fischer, M. Goldstein, Ella D. Plummer, C. J. and F. E. Briner, Cicman Realty & Investment Company, a Corporation, Louis Cicardi, Alex W. Hartman, Guardian of William Hartman, an Insane Person, Pinkus and Sadie Subowitz, Louis F. and Ada G. Korach, Louis F. and Israel Korach, Rose C. and Alice Clark, in behalf of themselves and others whose rights are affected in the same manner and who desire to join herein, Appellants, v. City of St. Louis, a Municipal Corporation

No. 34900

Supreme Court of Missouri

August 17, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge;

Affirmed.

August G. Walz for appellants.

(1) The court erred in striking plaintiffs' petition from the files, in that it pleads that the city of St. Louis had several suits pending for the widening of Morgan Street, all of which it dismissed; that these causes were not dismissed for the reason that there was any defect in the proceedings that within ten years the said city filed another suit which was a like action to condemn property to widen Morgan Street that the owners of three-fifths of the property to be taken did not petition said city to file the last suit, nor did the city pay all of the damages assessed in the suits dismissed. The filing of the last suit is prohibited by the charter. Art. 21, Sec. 10, Charter of the City of St. Louis. The charter requirement must be strictly complied with or the proceedings are void. State ex rel. v. Grimm, 284 S.W. 493; State ex rel. v. Moore, 18 S.W.2d 892; City v. Smith, 30 S.W.2d 731; Meyers v. Kansas City, 18 S.W.2d 901; St. Louis v. Koch, 169 Mo. 591; Spurlock v. Dorman, 182 Mo. 250; St. Louis v. Gleason, 93 Mo. 38; Shaffner v. St. Louis, 31 Mo. 264; Kansas City v. Crutcher, 214 S.W. 115; St. Louis v. Cruckshank, 16 Mo.App. 497; State ex rel. v. St. Louis, 67 Mo. 117; St. Louis v. Rlty. Co., 259 Mo. 36. (a) The court erred in striking plaintiffs' amended petition from the files, as it charges that the widening of Morgan Street is a major highway and is a benefit which inures to the general public and is not a local improvement within the meaning of the Charter of the City of St. Louis, and the said charter does not give the city of St. Louis any authority to assess benefits against plaintiffs' property for an improvement the benefit of which inures to the general public, as the said charter only authorizes the said city to assess a benefit for local improvements. Art. I, Sec. 3, Charter of the City of St. Louis.

E. H. Wayman and Oliver Senti for respondent.

(1) This suit was prematurely filed. (a) The original petition was filed March 28, 1933; the judgment in the condemnation suit was not entered until September 17, 1934. (b) The special benefits accruing to the plaintiffs' property because of the widening of Morgan Street did not become a lien until the judgment was rendered in the condemnation suit. Charter of St. Louis, Art. XXI, Sec. 8. (c) The city might have discontinued the proceedings to widen Morgan Street at any time before final judgment. St. Louis Brew. Assn. v. St. Louis, 168 Mo. 44, 67 S.W. 565; Lester Real Estate Co. v. St. Louis, 170 Mo. 31, 70 S.W. 151. (d) A suit on a cause of action not in existence when it was filed is premature. Vandike v. Maddix, 23 Mo.App. 192; Heard v. Ritchey, 112 Mo. 516, 20 S.W. 799; Juggin v. Orr, 224 Mo.App. 773, 29 S.W.2d 721. (2) When a suit is prematurely filed, the defect is fatal and cannot be cured by amendment. Davis v. Clark, 40 Mo.App. 515; Clothing Co. v. Steidemann, 120 Mo.App. 526. The trial court has wide discretion in allowing or refusing to allow amendments. Neville v. D'Oench, 34 S.W.2d 491.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This action was instituted against the City of St Louis as a class suit by certain owners in fee of real estate against which alleged special benefits had been assessed as a result of the widening of Morgan Street from Third Street to Grand Boulevard and for a cut off to Delmar Boulevard, public streets in said city, under ordinance enactments and proceedings had pursuant thereto. The appeal is from a judgment for defendant and against plaintiffs following plaintiffs' refusal to plead further after the trial court sustained defendant's motion to strike plaintiffs' "first amended petition" from the files.

Plaintiffs' original petition was filed on March 28, 1933, and on November 26, 1934, plaintiffs filed an amended petition. Defendant contends that plaintiffs prematurely instituted suit; that they may not cure such defect by amendment; and that the amended petition is a departure from the original petition. Plaintiffs' position is that their cause of action accrued at the time of the filing of the commissioners' report hereinafter mentioned.

Plaintiffs' original petition was in two counts. Sufficient for this review, the first count alleged, among other things, that certain ordinances had been enacted, etc., by defendant city; that a suit, styled City of St. Louis v. Franklin Bank et al., had been instituted for the condemnation of land to widen said Morgan Street, etc.; that, in said condemnation proceedings, the court appointed commissioners to set out the benefit district, the setting out of such benefit district and the assessment of benefits against the real estate of plaintiffs by said commissioners, the filing of the report of said commissioners, thereby creating a lien and a cloud on plaintiff's title; and, attacking the validity of the proceedings in said condemnation suit and the ordinances involved on constitutional and other grounds, plaintiffs sought to enjoin the collection of the alleged special benefit tax, to cancel and remove the alleged cloud on their title, and to have all proceedings in said condemnation suit decreed void. The second count, incorporating certain allegations of the first count by reference, averred an agreement by defendant to sell and assign the alleged benefit taxes and sought to restrain defendant from so disposing of the same.

Defendant filed a demurrer striking at each count of said petition.

On September 17, 1934, judgment was rendered in said cause styled City of St. Louis v. Franklin Bank et al.

Thereafter, plaintiffs filed their amended petition, likewise in two counts. It followed the averments of plaintiffs' original petition, but specifically pleaded, among other things, that in the condemnation suit "judgment was entered against these defendants [plaintiffs] based on the report of said commissioners;" that the report of said commissioners was on file with the court and the judgment based thereon of record, thereby...