Jaicks v. Sullivan
| Decision Date | 12 April 1895 |
| Parties | Jaicks, Appellant, v. Sullivan et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. R. L. Yeager, Judge.
Affirmed.
T. B Buckner for appellant.
(1) The charter provides that the suit shall be brought against the "owner of the property." Laws, 1875, p. 250, et seq. (2) Construing this provision, it has been held by our court: "That, in the absence of any knowledge or notice to the contrary, the holder of the bill has a right to assume that the person in whom the records showed the title to be vested was the true owner and sue accordingly." Vance v. Corrigan, 78 Mo. 97. (3) The proceeding is really against the land, although a personal defendant is necessary to the validity of the proceeding, but no personal judgment can be rendered in the suit, and it is sufficient to proceed against the record title when the true owner is unknown." Same, 97; Cowell v. Gray, 85 Mo. 169; Payne v. Lot, 90 Mo. 676; Allen v. Ray, 96 Mo. 542; Crane v. Dameron, 98 Mo. 567. (4) The suit to collect the tax bill was brought within two years from the issue thereof against Richard L. Sullivan, the admitted record owner of the property against which the bill was issued. This, under the charter, continued the lien in force until the determination of the legal proceedings to collect the same. Acts, 1875, p. 252, sec. 4; Dougherty v Downey, 1 Mo. 64; Wright v. Pratt, 17 Mo. 43; Gosline v. Thompson, 61 Mo. 471. (5) The running of the statute was arrested by bringing the suit within two years from the date of its issue against the record owner, and bringing in new owners by amendment, who were in no way shown to be interested by the record, did not state a new cause of action. In this class of cases the courts have been liberal in allowing amendments to save the statute from running, when the cause or substance of the action is not changed. Mann v. Schroer, 50 Mo. 306; Hannon v. Gibson, 14 Mo.App. 33; Newman v. Railroad, 19 Mo.App. 100; Lottman v. Barnett, 62 Mo. 159.
Brown, Chapman & Brown for respondents.
(1) This action was not commenced against defendants within the two years after the tax bill was issued. The lien of a tax bill continues for two years, and no longer. Parties made defendant after the lien of the tax bill has expired, such tax bill can not be enforced against the interests of such defendants in the property. The lien of this tax bill was dead before defendants were made parties, and no act of plaintiff could give it further life. Smith v. Barrett, 41 Mo.App. 460; Bombeck v. Devorss, 19 Mo.App. 38; Fury v. Boeckler, 6 Mo.App. 24; Altman v. Cole, 16 Neb. 4; Hawes on Parties to Actions, sec. 8, note 20; Jeffers v. Cook, 58 Cal. 147; Shaw v. Cock, 78 N.Y. 196. (2) "Only the right, title, interest and estate of the parties made defendants in any suit shall be affected or bound thereby, or by the proceeding therein." Laws of 1875, p. 252, sec. 4. (3) There was no proper suit commenced upon this tax bill within two years. The defendant named had been dead more than four years. A dead man can own nothing of record, or otherwise. A judgment in a suit commenced and prosecuted against a dead man is void as to him and those claiming under him. Bollinger v. Chouteau, 20 Mo. 89; Williams v. Hudson, 93 Mo. 524; Crosley v. Hutton, 98 Mo. 196. (4) The amended petition made a complete change of parties defendant. This appears upon the face of the record. A complete change of parties constitutes a new cause of action. Clements v. Greenwell, 40 Mo.App. 594; Thieman v. Goodnight, 17 Mo.App. 434. (5) The limit to strike out and add parties is that there shall not be an entire change of the parties, plaintiff or defendant. Courtney v. Sheehy, 38 Mo.App. 293; Hawes on Parties to Actions, sec. 106, and note 12; Berry v. Ferguson, 58 Ala. 314; Association v. Remington A. Wks., 89 N.Y. 22; Taylor v. Taylor, 43 Ala. 649; Steed v. McIntyre, 68 Ala. 407; 17 Am. and Eng. Encyclopedia of Law, p. 619, and note. (6) The amendment of section 6345, Revised Statutes of 1889, has not changed the above rule. Altheimer v. Teuscher, 47 Mo.App. 286.
This cause has been certified to this court by the Kansas City court of appeals, as required by the constitution, because of a difference of opinion among the judges of that court, and because the opinion of the majority was deemed to be in conflict with a prior decision of the St. Louis court of appeals. Eyermann v. Scollay, 16 Mo.App. 498.
On the nineteenth of November, 1886, Richard L. Sullivan was the owner of lot number 20 in block 8 in Fairmount Park, an addition to Kansas City, Missouri, and on that day died, leaving defendants as his only heirs at law. Afterward, on the thirteenth day of October, 1888, said City of Kansas passed an ordinance number 44028 requiring twenty-fifth street in said city to be paved, and on the twenty-fourth day of December, 1888, the city engineer certified a tax bill in favor of Andrew Jaicks against said lot number 20 in block 8, Fairmount Park, for the sum of $ 70.92 as its share of the cost of said improvement.
By the charter of Kansas City then in force it was provided that: "Every such tax bill shall be a lien on the property therein described, against which the same may be issued on the date of the receipt to the city engineer therefor, and such lien shall continue for two years thereafter, but no longer, unless suit be brought to collect the same within two years from the issue thereof, in which case the lien shall continue until the determination of the legal proceedings to collect the same, including any sale of the property charged." Sec. 4, art. 8, Kansas City Charter, Laws of 1875, p. 252.
It is further provided in the same section that
On the twenty-third day of December, 1890, the plaintiff began a suit in the circuit court of Jackson county to enforce his lien. The only defendant named in this suit was Richard L. Sullivan. An ordinary summons was issued and the sheriff made a non est return. Thereupon an order of publication was made directed against said Richard L. Sullivan requiring him to appear on October 12, 1891, the first day of the October term, 1891, and, default having been made, judgment was taken and an execution was awarded. The sale was advertised and Mrs. Sullivan the widow, having seen it, called upon the attorney for the plaintiff and requested him to postpone the sale.
Negotiations for settlement having failed, the plaintiff moved the court to set aside his judgment, which was done, and thereupon, by leave of court, plaintiff on the nineteenth day of December, 1891, filed an amended petition, omitting Richard L. Sullivan as a defendant, but making his widow and two minor sons defendants, and all three were duly served, and a guardian ad litem was appointed and an answer filed, in which they rely upon the special statute of limitations of two years as a bar. Mrs. Sullivan filed a separate answer also relying upon the special statute.
Upon these facts the trial court held the action against the widow and heirs of Richard L. Sullivan barred by the statute of two years' limitation. In the Kansas City court of appeals a majority of the court reversed the judgment of the circuit court and Judge Gill dissented, and that court, of its own motion, transferred the cause to this court.
I. The contention of the plaintiff is that this action to enforce the lien for the special tax for street paving is a proceeding strictly in rem and the bringing of the suit on the last day of the time allotted for commencing the action would save it from the bar of the statute, but if it can be made clear that the interest and estate of the widow and heirs of Richard L. Sullivan can not be divested under the charter of Kansas City without notice to them and a day in court to show why said lien should not be enforced against them, then it must follow from all the analogies of the law that it was not a proceeding in rem and that the lien was barred when they were notified of the commencement of the action, and that the opinion of Judge Gill was a correct exposition of the law, unless the amendment related to the commencement of the suit against Richard L. Sullivan.
The operation and extent of the lien must be determined by the terms of the statute creating it and its enforcement regulated by the charter. Looking to the charter, then, we find that the proceedings to enforce the lien affect or bind "only the right, title, interest and estate of the parties made defendants in any such suit." Laws 1875, sec. 4, p. 252. The tax lien thus created is plainly a jus ad rem only to the extent of the special tax assessment and nothing more. The statute plainly intends that, before the right, title or interest of any person in said real estate can be sold or divested, he or she shall be made parties to the proceedings. It was so...
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