Hunter v. Kansas City Safe-Deposit & Savings Bank

• Decision Date: 30 June 1900
• Citation: 58 S.W. 1053,158 Mo. 262
• Court: Missouri Supreme Court
• Parties: HUNTER v. KANSAS CITY SAFE-DEPOSIT & SAVINGS BANK et al.

58 S.W. 1053

158 Mo. 262

HUNTER v. KANSAS CITY SAFE-DEPOSIT & SAVINGS BANK et al.

Supreme Court of Missouri, Division No. 1.

June 30, 1900.

INSANE PERSONS — SPECIAL ASSESSMENTS — BILL TO RECOVER — DEFECTIVE PARTIES — AMENDMENT.

Kansas City Charter, art. 9, § 18, provides that a judgment to enforce a tax bill issued to pay a special assessment shall not be binding on a person having an interest in the land on which the bill is issued, and who was not made a party. Rev. St. 1889, § 5544, provides that the process in an action against an insane person may be served on his guardian, whose duty it is, under section 5530, to defend all suits against him. Section 2101 provides that after final judgment the court may amend the pleadings in affirmance of the judgment by adding to or striking out the name of the party, and such judgment shall not be reversed or annulled therefor. Section 2100 requires the court to disregard any defect in the pleading which does not affect the merits. The petition and summons in an action to enforce a tax bill against the property of A., who was insane, were entitled against B., as guardian of A., but the allegation in the petition showed that the action was to subject the property of A. to the bill. B. appeared, but did not defend for A., and afterwards sought to enjoin the collection of a default judgment against A. Held, that the enforcement of the judgment would not be enjoined for the failure to name A. as a party defendant in the caption, since, if there is any force in such objection, it can be cured by amendment.

Appeal from circuit court, Jackson county; Edward L. Scarritt, Judge.

Injunction by Robert Hunter, an insane person, by Henry F. Rose, his guardian, against the Kansas City Safe-Deposit & Savings Bank and others to restrain the collection of a judgment. From a decree in favor of the defendants, the plaintiff appeals. Affirmed.

G. F. Ballingall, for appellant. Ashley, Gilbert & Dunn, for respondents.

BRACE, P. J.

This is a suit in equity against said bank, its assignee, and the sheriff of Jackson county, to enjoin the enforcement of a judgment of the circuit court of Jackson county rendered at the April term, 1895, of said court, in favor of said bank, on two special tax bills, each for the sum of $740.35, issued by Kansas City under the provisions of its charter and ordinances passed in pursuance thereof for work done and materials furnished for the paving of Grand avenue in said city. The petition in the suit in which the judgment was rendered counted on each tax bill separately, and separate judgments were rendered on each count, the one being a counterpart of the other, except as to the description of the real estate against which it was charged. The first count in that petition is as follows: "In the Circuit Court of Jackson Co., State of Missouri. At Kansas City, April Term, 1891. Kansas City Safe-Deposit and Savings Bank, Plaintiff, vs. Henry F. Rose, Guardian of Robert Hunter, Defendant. Now comes plaintiff, and for its cause of action against defendant alleges: That plaintiff is a corporation created and existing under and by virtue of the laws of the state of Missouri; that on August 7, 1880, Robert Hunter was by the county court of Jackson county, Missouri, declared and adjudged a lunatic, and incapable of managing and having the care of his own estate and property, and that on the ____ day of ____, defendant, Henry F. Rose, was by the probate court of Jackson county duly appointed guardian of the person and estate of said Robert Hunter; that he duly qualified as such guardian, and has ever since, and is now, acting as such guardian. (2) That Kansas City is, and was at the times hereinafter mentioned, a municipal corporation organized and existing under and by virtue of the laws of the state of Missouri. (3) That by Ordinance No. 333, entitled `An ordinance to pave Grand avenue from the north line of Twentieth street to the north line of Springfield avenue,' approved August 23, 1889, said city provided for the paving of Grand avenue from the north line of Twentieth street to the north line of Springfield avenue, all within the limits of said city as the same then existed. (4) That in accordance with said ordinance and the charter and ordinances of said city the engineer thereof duly awarded the contract of said work to Ragan, Soper, Wells & Co., a firm composed of D. Soper, S. M. Wells, C. H. Wells, and J. C. Ragan; that all of said work was done, and the materials therefor furnished, in full accordance with the terms and provisions of said contract, and was duly accepted by said city, and approved. (5) That said work had been duly petitioned for, and in said petition it was requested that said tax bills should be payable and collectible in installments, as provided by the charter of said city; and in said Ordinance No. 333, which ordinance provided for the doing of said work, it was provided that said work should be paid for by said tax bills due and payable in installments, as provided for in said charter. (6) That after the completion of said work the said city engineer computed the whole cost thereof, and apportioned said cost among the several lots and parcels of land to be charged therewith; that, after so apportioning and charging the cost of said work, the board of public works of said city made out and certified in favor of said Ragan, Soper, Wells & Co. special tax bills for the doing of said work and the furnishing of materials therefor, each of which bills is duly signed and certified to by the president of said board, and that the special tax bill hereto attached and numbered 111 is one of those so made out and certified, and was issued and delivered for the doing of said work, and is against and a lien upon the following described real estate in said Kansas City, Jackson county, Missouri, to wit: That part of lot three (3) lying west of the west line of Grand avenue, Scarritt and Peery's subdivision of the east half (½) of the southwest quarter (¼) section 8, township 49, range 33, which said property is owned or claimed by the above-named Robert Hunter; and said real estate joins and fronts upon that portion of Grand avenue on and along which said work was done as aforesaid, and is described in said tax bill; and that the amount of said tax bill is the correct and proportionate amount of the total cost of said work according to the frontage of said property; that said property has been and is charged by said tax bill with the sum of seven hundred and forty dollars and thirty-eight cents ($740.38). (7) That said tax bill was issued on the 10th day of January, 1890, and by the provisions of the charter of said city the first installment thereof was due sixty days from date; that, notwithstanding said first installment is and has long since been due, the same has been unpaid, and the defendant has wholly failed, refused, and neglected to pay the same, and all of said installments and said tax bill is due and unpaid. (8) That said tax bill has been duly assigned to the plaintiff by said Ragan, Soper, Wells & Co. for value, and the plaintiff is now the legal owner and holder thereof. (9) That said tax bill contains a correct description of the land described aforesaid, the number, the title, the date of passage of said ordinance, and recites that said work has been completed according to contract by said Ragan, Soper, Wells & Co., contractors, to whom said bill is issued in part payment thereof; that the sum of seven hundred and forty dollars and thirty-eight cents ($740.38) has been duly assessed and apportioned against the said land, being the amount chargeable against said land as provided by law, for its proportion of the cost of said work, and is a lien against said land; that this tax bill is payable in four equal installments of one hundred and eighty-five dollars and nine and one-half cents ($185.09½) each on presentation of three installment coupons thereto attached; that the fourth and last of said installments is payable three years from the date of said bill on surrender and cancellation of the same; that this tax bill bears interest at the rate of seven per cent. per annum from date until paid, the interest on each installment being payable at the maturity of the installment,...