Eyermann v. Scollay
| Decision Date | 24 February 1885 |
| Citation | 16 Mo.App. 498 |
| Parties | G. EYERMANN, Appellant, v. E. SCOLLAY ET AL., Respondents. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, LUBKE, J.
Affirmed.
T. J. CORNELIUS, for the appellant: Where in a sut on a special tax bill, erroneously issued, there was judgment for the defendant, this is not a bar to a suit upon an amended tax bill afterwards issued by the city engineer for the same work.-- Pendergast v. Richards, 2 Mo. App. 187; Riley v. Cramer, 51 Mo. 542; Eyermann v. Provenchere, 15 Mo. App. 256.
W. H. CLOPTON, for the respondents: The first bill was a valid one so far as the merits of a controversy between plaintiff and defendants were concerned. A judgment was entered for defendants and they are protected by it.-- City to use v. De Noure, 44 Mo. 136; Studler v. Roth, 59 Mo. 402.
This is an action upon three special tax bills issued by the president of the board of public improvements of the city of St. Louis, on December 28th, 1881, in lieu of one other special tax bill surrendered and cancelled, issued on October 29th, 1874, by the then city engineer of the city of St. Louis, under the then existing charter and ordinances, for work and labor done, and materials furnished by the plaintiff prior to that date, as a contractor with the city for the construction of sewers in a certain sewer district therein named. The original tax bill was made out against the land in the name of Leonard Scollay. Action was brought upon it at the October term, 1876, of the circuit court of the then St. Louis County, against Leonard Scollay alone. Thereafter the plaintiff, discovering that Leonard Scollay was dead, filed by leave of court his amended petition on the 1st day of May, 1877, upon the same tax bill, against the persons who are the defendants in the present suit. These defendants answered by their attorneys; an agreed case was drawn up, upon which the cause was submitted to the court, and the court thereupon rendered judgment for the defendants. One of the grounds of defence set up in that action by the defendants in their answer to the amended petition was, that the lien of the special tax bill sued on, had perished by the lapse of time, under a provision of the amended charter of 1870, reading as follows: “Whenever any such special tax bill issued heretofore, or hereafter to be issued, shall be paid, it shall be entered satisfied on the register of the comptroller's office; and any bill that is not entered satisfied within two years after its date, unless proceedings in law shall have commenced to collect the same within that time, and shall be still pending, the lien shall be destroyed and of no effect against the land charged therewith.”
The defendants in their answer in the present suit plead the former judgment in their favor, by way of estoppel. They also plead the same statute of limitations. At the trial, they put in evidence the record of the former suit, including the agreed statement of facts, in which the statute was set out.
The above is a sufficient statement of facts to show that the circuit court rightly rendered judgment for the defendants in this case.
1. The former action, brought by the present plaintiff against the present defendants, was upon substantially the same cause of action as the present action. The judgment of the circuit court in favor of these defendants and against this plaintiff in that action, rendered upon the merits, is, therefore, a complete bar to the present action, unless, as is argued, the two causes of action are not identical. The ground of this contention is that, by procuring from the president of the board of public improvements under the present charter the tax bills sued on in lieu of the one on which the original suit was brought, the plaintiff acquired a new cause of action. To sustain this position, the plaintiff appeals to our decisions in Eyermann v. Blakesley (13 Mo. App. 407), Eyermann v. Provenchere (15 Mo. App. 256), and Prendergast v. Richards (2 Mo. App. 187).
In those cases, this court held that, where work has been done under a valid contract with the city, and the proper ministerial officer of the...
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