Heman v. Larkin

• Citation: 70 S.W. 907
• Parties: HEMAN v. LARKIN et al.
• Decision Date: 25 November 1902
• Court: Court of Appeal of Missouri (US)

70 S.W. 907

HEMAN v. LARKIN et al.

Court of Appeals at St. Louis, Missouri.

November 25, 1902.

JUSTICE OF THE PEACE — COMMENCEMENT OF SUIT — SUMMONS — DOCKET — SPECIAL TAX BILL — ACTION — EVIDENCE.

1. In a suit before a justice of the peace, the delivery of the writ to the constable to be served is the commencement of the action. It is the duty of the constable to indicate by a memorandum on the summons the date when the same was received by him (Rev. St. 1899, § 3850); but, where such an entry is omitted, evidence aliunde may be introduced to show when the writ was in fact delivered to the constable.

2. The court comments on the meaning of the word "issued," as applied to writs of summons.

3. The docket of a justice of the peace is evidence of the matters required by law to be stated therein, and of other proceedings had before him in the cause which he may recite therein.

4. Under the St. Louis charter of 1876, suit must be commenced on a special tax bill for street improvements within two years from the date of the bill; otherwise the lien expires at that time.

5. A special tax bill aforesaid is prima facie evidence of the liability of the defendants named therein as owners of the land affected thereby.

6. A peremptory instruction to find for defendant is permissible only when there is no testimony tending to support the plaintiff's case.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; Warwick Hough, Judge.

Action by Harry F. Heman against Mary C. Larkin and others. From a judgment before a justice for plaintiff, defendants appeal to the circuit court. From a judgment there rendered for defendants therein, plaintiff appeals. Reversed.

Hickman P. Rodgers, for appellant. Geo. W. Lubke, Jr., for respondents.

BARCLAY, J.

This is an action to enforce a special tax bill, which is dated December 8, 1897, for improvements in the city of St. Louis. The tax bill runs in favor of the plaintiff, a contractor, who, according to the recital in the tax bill, did certain work necessary for repairing a sidewalk in one of the city streets. The tax was assessed in the usual way against the adjacent property to pay for said work. This suit was brought against the owners and lessee of the land charged with the alleged lien of the tax bill. The latter is founded on provisions of the charter of the city of St. Louis governing the doing of such work. One of those provisions is as follows: "Any bill that is not entered `Satisfied' within two years after its date, unless proceedings in law shall have been 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." Charter of St. Louis of 1876, art. 6, § 26 (Rev. St. 1899, p. 2514, § 26). The defense in the case at bar is that the suit was begun too late to comply with the terms of the law just quoted. Defendants claimed, and the trial court adjudged, that the lien of the tax bill had expired before the proceedings in this cause had "been commenced." Plaintiff had special judgment before the justice. An appeal was taken therefrom to the circuit court, where a trial anew was had. The tax bill was offered and read in evidence. It was sufficient to charge the property in question with the lien, unless the latter had expired by reason of delay in commencing the suit. Evidence was submitted by plaintiff tending to show that his statement of claim was filed December 5, 1899, before Justice Spalding, in one of the judicial districts of the city of St. Louis, and that summons to defendants was issued thereon upon the same day. The language of the justice's docket entry, as it appears in the transcript, is as follows: "Summons writ issued to Constable Ben F. Brady the 5th day of December, 1899; returnable the 20th day of December, 1899, at 7 o'clock a. m." On the back of the summons is a printed blank, intended, when completed, to show the time when the writ was received by the constable. In this instance the receipt remains a mere skeleton, with blanks unfilled. The first writ was returned unexecuted by the constable. Later writs were served as to some defendants, and appearances entered as to the rest. The result of this appeal, however, turns on the true date of issue of the first process mentioned. The later writs were beyond the period of limitation Defendants insist that the first writ did not reach the constable within the two years of the life of the lien defined by the charter provision already quoted. There were some rulings on offers of testimony by plaintiff, which need not be mentioned more particularly, in view of the result we shall announce. At the close of the trial the court gave a peremptory instruction denying plaintiff any recovery. Judgment followed accordingly, and this appeal was taken from it after the necessary moves to that end in the circuit court.

1. The leading question is, was the suit brought within two years from the date of the bill, the term which the charter marks for the duration of the lien? The organic law applicable to St. Louis differs in phraseology from that of Kansas City on this point, and fixes the commencement of the period of limitation rather more definitely than does the law of our sister city. Folks v. Yost (K. C.) 54 Mo. App. 55. Here the tax ...