Gray v. Bowles

• Decision Date: 31 October 1881
• Citation: 74 Mo. 419
• Parties: GRAY v. BOWLES, Appellant.
• Court: Missouri Supreme Court

74 Mo. 419

GRAY

v.BOWLES, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge

AFFIRMED.

Bryant, Holmes & Powell, for appellant.

As the proceeding to foreclose the liens of the special tax bills is purely statutory, and that, too, in a court of limited and purely statutory jurisdiction, the remedy cannot be extended beyond the provisions of the charter. Since the charter provides in express terms that “the judgment shall be special, to be levied of the land described in the bill,” it follows that the judgment in this case being against lot 9 for the amount found due on a tax bill which only describes lot 10, and vice versa, is an absolute nullity and must be considered as an inadvertent assumption of judicial power not granted by law. Windsor v. McVeigh, 93 U. S. 274; Fithian v. Monks, 43 Mo. 502; Sheehan v. Good Samaritan Hospital, 50 Mo. 155; State v. Stephenson,12 Mo. 178, 182, 183. If the charter were so construed as to authorize or permit a judgment for the amount found due on a special tax bill against land which is not described in such bill, the charter would to that extent be unconstitutional and void, as contravening that provision of the constitution against taking private property for public use without just compensation; and any judgment rendered under it would be an absolute nullity. St. Louis v. Allen, 53 Mo. 44; Taylor v. Palmer, 31 Cal. 240; Reily v. Lancaster, 39 Cal. 354.

Peak & Yeager for respondent.

If the justice had jurisdiction of the subject matter of the action and of the persons of the parties, his judgment, like the judgment of a circuit court, however irregular or erroneous, is valid and binding until set aside or reversed, and cannot be attacked collaterally. United States v. Arredondo, 6 Pet. 709; Sheldon v. Newton, 3 Ohio St. 498, 499; Rorer on Judicial Sales, § 59; Freeman on Judg., § 117 to 127, §§ 135, 135a; Freeman on Void Judicial Sales, §§ 2, 3, 5; Grignon v. Astor, 2 How. 338; Beauregard v. New Orleans, 18 How. 502; Maxwell v. Stewart, 22 Wall. 79; Hardin v. Lee, 51 Mo. 241; Carson v. Sheldon, 51 Mo. 436; Freeman v. Thompson, 53 Mo. 193 to 198; Kane v. McCown, 55 Mo. 199 to 202; Ellis v. Jones, 51 Mo. 186; Jeffries v. Wright, 51 Mo. 221; Brackett v. Brackett, 53 Mo. 266; Wimberly v. Hurst, 33 Ill. 166; Feaster v. Fleming, 56 Ill. 458; Chase v. Christianson, 41 Cal. 253; Pursely v. Hayes, 22 Iowa 11. But the justice's court, by express provision of the statute, had jurisdiction of the subject matter of the action. See City Charter, Sess. Acts 1875, p. 252, § 4. And the defendant duly appeared upon the day of trial before the justice and defended the suit. It is the policy of the law to uphold and enforce the proceedings of courts when jurisdiction has attached--and not suffer their judgments to be brought in question in collateral proceedings. Mayov. Ah Loy, 32 Cal. 477; Mayo v. Foley, 40 Cal. 281; Rorer on Judicial Sales, § 171; Dorsey v. Kendall, 8 Bush 294; Fulkerson v. Davenport, 70 Mo. 541; Castleman v. Relfe, 50 Mo. 583; Hewitt v. Weatherby, 57 Mo. 276; Sims v. Gray, 66 Mo. 616; Ellis v. Jones, 51 Mo. 181; Jeffries v. Wright, 51 Mo. 221; Brackett v. Brackett, 53 Mo. 266; Carr v. Spannagel, 4 Mo. App. 288; Rugle v. Webster, 55 Mo. 246; Anderson v. Ryder 46 Cal. 134.

NORTON, J.

This was an action of ejectment to recover the possession of lots 9 and 10, in block 5, in Peery Place, an addition to the City of Kansas. The answer was a general denial, and by agreement, the cause was tried by the court without the intervention of a jury. Judgment was rendered for plaintiff, from which the defendant has appealed.

The evidence at the trial developed the following case: The appellant was in possession of the premises sued for at the commencement of the suit, and had been living upon and occupying the same for several years immediately prior thereto, his dwelling house being situated partly on each of said lots. The respondent claimed title through a deed from C. B. L. Boothe, as sheriff of Jackson county, to the said respondent, made in pursuance of a sale of said lots under and by virtue of a special execution, issued from the circuit court of Jackson county, in favor of one John McKenna, and Robert Gray, the respondent, and against Bryson Bowles, the appellant. Said special execution was issued upon a transcript of a special judgment against said lots for $24.20 and costs rendered by one Abram Ellenberger, a justice of the peace, in a suit by said John McKenna and Robert Gray against said Bryson Bowles. The record of said suit before the said justice of the peace (which was in evidence) showed that said suit was instituted to foreclose the liens of four special tax bills for grading Charlotte street, two of which described said lot 9 and the other two of which described said lot 10; that upon the trial day of said suit the appellant duly appeared and defended it; and that the said justice rendered a solid judgment for said $24.20, being the aggregate amount of said special tax bills, and made the whole of said judgment a lien on both of said lots. At the sheriff's sale the respondent became the purchaser of said lots at $16.35 each.

The charter of the City of Kansas contains the following provisions respecting the issue and enforcement of special tax bills for grading streets: “After a contract has been made for the grading of any street, * * the common council shall, by ordinance cause an assessment to be made of the value of all the property to be charged with the cost thereof, exclusive of improvements thereon, by the city assessor, which assessment shall be delivered to the city engineer; and, when such grading shall be completed, the city engineer shall compute the cost thereof, and apportion such cost among the several lots or parcels of property to be charged therewith, according to the values thereof fixed by the city assessor, as aforesaid, and charge each lot or parcel of property with its proper share of such cost. * * The city engineer shall, after so apportioning and charging the cost of any work, make out and certify special tax bills, according to such apportionment and charge, in favor of the contractor to be paid, against the several lots or parcels of land charged. * * Each tax bill shall contain a description of the lot or parcel of land against which it is issued, full and correct enough to identify the same.

Every such tax bill shall be a lien on the property therein described. * * In suit on any tax bill the judgment shall be special, and that plaintiff recover the amount found due, including interest, to be levied of the land described in the bill, and a special execution shall issue to sell the land to pay such judgment, interest and costs, and the judgment shall bear interest at the same rate as the tax bill. When the amount due on any tax bill does not exceed $300, suit may be brought thereon before the recorder of the city, or any justice of the peace in said city, as in other civil cases, and such recorder or justice of the peace may render a special judgment as aforesaid, but to enforce the same a transcript of such judgment shall be filed in the office of the clerk of the circuit court of Jackson county, in said city, and be recorded, docketed and indexed as a judgment of that court, whereupon an execution may be issued out of that court, the same as if the judgment had been rendered in that court.” Laws of Mo. 1875, pp. 251, 253, §§ 3, 4.

The chief error assigned is the action of the court in refusing, on defendant's motion, to declare that the judgment of the justice of the...