Gilsonite Construction Company v. Greffet

• Decision Date: 06 May 1913
• Citation: 156 S.W. 765,174 Mo.App. 176
• Parties: GILSONITE CONSTRUCTION COMPANY, Respondent, v. ROSALIE GREFFET, Appellant
• Court: Missouri Court of Appeals

156 S.W. 765

174 Mo.App. 176

GILSONITE CONSTRUCTION COMPANY, Respondent, v. ROSALIE GREFFET, Appellant

Court of Appeals of Missouri, St. Louis

May 6, 1913

Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.

Judgment affirmed.

Kinealy & Kinealy for appellant.

(1) The requirement of section 9848 of the Revised Statutes as to filing notice of suit with the city comptroller is mandatory and therefore the court erred in giving plaintiff's first instruction and in refusing defendant's first two instructions. 36 Cyc. 1157, title Statutes; Hope v Flentge, 140 Mo. 401; Horsfall v. School District, 143 Mo.App. 541. (2) This statute effects the remedy merely and therefore it applies to this case and the court erred in giving plaintiff's second instruction. Clark v. Railroad, 219 Mo. 524; Gibson v Railroad, 225 Mo. 473; St. Louis v. Calhoun, 222 Mo. 44; Daggs v. Insurance Co., 136 Mo. 382; O'Bryan v. Allen, 108 Mo. 227; Zellars v. Surety Co., 210 Mo. 86.

Edward C. Kehr for respondent.

The Act of June 1, 1909, imposes an additional burden on the holder of a special tax bill, namely, the obligation to file a notice with the comptroller; but remedial laws are not allowed a retrospective operation when they create an additional disability or new defense or otherwise impair vested rights. Petring v. Rand & C. Co., 111 Mo.App. 377; Manwaring v. Mo. L. & M. Co., 200 Mo. 733.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit on five separate special tax bills declared upon in as many separate counts of the petition. Plaintiff recovered and defendant prosecutes the appeal.

The special tax bills were issued to plaintiff against five separate lots owned by defendant on account of the construction of a sidewalk in front of such lots in the city of St. Louis. The tax bills were issued December 17, 1907, under the provisions of the charter of the city of St. Louis, which prescribed the lien of the tax bills should expire if not sued upon within two years from their date. Notice of the issuance of the tax bills and demand was duly made on the defendant owner of the property. After the tax bills were issued and after the notice thereof was served and demand made on the defendant, the Legislature contributed the following two sections to our statutory law:

"Whenever any suit shall be commenced in any city of this State now having, or which may hereafter have a population of three hundred thousand or more inhabitants, on any special tax bill to enforce the payment or the lien thereof, the party or parties plaintiff shall, within ten days after the commencement of such suit, file with the comptroller or other officer of such city, in whose office the record of such special tax bills is required to be kept, a written notice setting forth when and in which court such suit was brought; and the comptroller or such other officer shall immediately note such facts on the record of such tax bill." [Sec. 9848, R. S. 1909.]

"The lien of every such tax bill shall cease, end and determine in two years after said tax bill, or the last installment thereof, if the same be payable in installments, shall have become due and payable, unless suit shall have been brought on such tax bill, and notice of such suit, as hereinbefore required, shall have been given and filed within that time. If within said time no such suit was brought, or if within said time no such notice of suit shall have been filed, the tax bill shall be presumed to have been paid, and the comptroller, or other proper officer, shall make an appropriate entry on the record of the tax bill in his office that the lien thereof has expired by lapse of time." [Sec. 9849, R. S. 1909.]

This suit was instituted on the several tax bills, December 16, 1909, or one day before the expiration of the limitation period prescribed in the city charter with respect to the lien. Though plaintiff instituted the suit within the time limit prescribed to preserve the lien, it omitted to file the notice thereof with the comptroller of the city of St. Louis in accordance with the statutes above copied. By the answer defendant pleads this fact and defends on the ground alone that the notice of the filing of the suit required by sections 9848 and 9849, Revised Statutes 1909, was not filed with the comptroller within the time prescribed therein. The court gave judgment for plaintiff on the tax bills and a special judgment against the properties enforcing their liens as though the statutes above copied are unavailing in defense of the instant suit.

It is argued here these statutes go to the remedy only and that it is therefore competent for the Legislature to enact them and impose an additional burden upon the plaintiff, even though the enactment was subsequent to the date the tax bills were issued and the notice thereof and demand on defendant owner. But we are not so persuaded. It is to be noted that section 9848 is merely directory, in so far as it requires a plaintiff in a suit on the bill to file with the comptroller within ten days after the commencement of the suit, a written notice setting forth the fact of the suit and the court in which it is instituted, which facts the comptroller must immediately note in the proper...