Kansas City And Travelers Insurance Co. v. Field

• Decision Date: 02 December 1920
• Citation: 226 S.W. 27,285 Mo. 253
• Parties: KANSAS CITY and TRAVELERS INSURANCE COMPANY, Appellants, v. RICHARD H. FIELD
• Court: Missouri Supreme Court

226 S.W. 27

285 Mo. 253

KANSAS CITY and TRAVELERS INSURANCE COMPANY, Appellants, v. RICHARD H. FIELD

Supreme Court of Missouri, First Division

December 2, 1920

Appeal from Jackson Circuit Court. -- Hon. William O. Thomas, Judge.

Affirmed.

E. M Harber, Benjamin M. Powers, Delbert J. Haff and Charles W German for appellants; Haff, Meservey, German and Michaels of counsel.

(1) Under the Charter of Kansas City in force at the time of these proceedings (Sec. 20, Art. X, p. 180, Charter 1898) the lien of the assessments involved herein attached from the date of the taking effect of the ordinance and continued until paid or collected in full, both principal and interest. Charter 1898, p. 177, Art. X, sec. 16; p. 178, Art. X, sec. 17; p. 180, Art. X, secs. 20, 21; St. Louis v. Brinckwirth, 204 Mo. 280; Pleadwell v. Glass Co., 151 Mo.App. 51; City of Kansas v. Payne, 71 Mo. 159. (2) There being a lien, the court has jurisdiction to foreclose it in an appropriate action brought for that purpose. Lockett v. Robinson, 31 Fla. 134, 20 L. R. A. 67; Davis v. Alvord, 94 U.S. 545, 24 L.Ed. 283; Hooven, Owens & Rentschler Co. v. John Featherstone's Sons, 111 F. 81; Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 F. 199; Sheffield Furnace Co. v. Witherow, 149 U.S. 573, 37 L.Ed. 853; Gilchrist v. Railroad Co., 58 F. 708; Evans v. Silvey & Co., 42 So. 62; Enslen v. Wheeler, 13 So. 473; Kreling v. Kreling, 50 P. 546; Provolt v. Railway Co., 69 Mo. 633; Duncan v. Mo. Pac. Ry., 22 Mo.App. 614; Wells County v. McHenry, 74 N.W. 241. (3) The lien of the assessment of benefits is unaffected by the decision of this court that execution cannot issue on the judgment of confirmation. Sec. 2125, R. S. 1909; Riley's Adm. v. McCord's Adm., 21 Mo. 285, 24 Mo. 265; Board of Trustees v. Fry and Woods, 192 Mo. 552; Boyd v. Ellis, 107 Mo. 394; Fleckenstein v. Baxter, 114 Mo. 493; Sec. 2828, R. S. 1909; Sec. 2837, R. S. 1909; Keith & Perry Coal Co. v. Bingham, 97 Mo. 196; Wolff v. Ward, 104 Mo. 127; Hannah v. Davies, 112 Mo. 599; Trust Co. v. McDonald, 146 Mo. 467; State ex rel. v. Evans, 176 Mo. 310; Brim v. Fleming, 135 Mo. 597; Pratt v. Clark, 57 Mo. 189. (4) Statutes of limitation or repose do not effect the lien of the assessments involved. St. Louis v. Gleason, 15 Mo.App. 25, 93 Mo. 33; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259; Meier v. St. Louis, 180 Mo. 391; Morrow v. Kansas City, 186 Mo. 675; Barber Asphalt Paving Co. v. Meservey, 103 Mo.App. 186; Brunn v. Kansas City, 216 Mo. 108; Stanton v. Thompson, 234 Mo. 7; State ex rel. v. Seehorn, 246 Mo. 541; Barber Asphalt Paving Co. v. Hayward, 248 Mo. 280; Kansas City v. Woerishoeffer, 249 Mo. 1; R. S. 1909, secs. 8738, 9270; Laws 1911, pp. 342, 345; Laws 1913, pp. 290, 489; Rabshul v. Lack, 35 Mo. 316; Gilsonite Construction Co. v. Coal Co., 205 Mo. 49.

John H. Lucas, Enward J. White and Cyrus Crane for respondent.

(1) The city charter provided for enforcement of the assessment by execution on the judgment. Kansas City Charter, 1898, sec 17, p. 178; sec. 21, p. 182 (2) There is no remedy provided in said city charter (or by statute) for the enforcement of the alleged assessment by suit, or otherwise than by execution on the judgment on the verdict. The charter having thus provided for the enforcement of the alleged assessment by execution, and not having provided any other remedy therefor, the alleged assessment cannot be enforced by this suit or by any suit at law or in equity thereon. Carondalet v. Picot, 38 Mo. 125; Alexander v. Hebler, 35 Mo. 341; State ex rel. v. Goodnow, 80 Mo. 271; Moberly v. White, 19 Mo.App. 269; Jamison v. Harvey, 147 Mo.App. 145; Chandler v. Railroad, 251 Mo. 600; Commission Co. v. Spencer, 205 Mo. 119; Ridlick v. Governor, 1 Mo. 147. (a) This is only the rule of strictissimi juris which always applies to a statutory remedy on a statutory liability. Ridlick v. Governor, 1 Mo. 147; Construction Co. v. Spencer, 205 Mo. 119; Chandler v. Rairoad, 251 Mo. 600. (b) And this strict rule also negatives the claim or suggestion of plaintiffs that the last clause of Section 21, Article X, of the charter, giving a right to enforce all of the installments of the assessment for default of any installment, makes each installment of the assessment a separate and successive cause of action as each comes due. This claim of plaintiffs is entirely unfounded and is contrary to the express provision of Sections 17 and 21, making all of the installments become as one entire assessment, and plaintiffs can have no say thereon. (c) No fact or matter is alleged in the petition to make this suit a case in equity. Carondelet v. Picot, 38 Mo. 125; Jamison v. Harvey, 147 Mo.App. 145; Marshall v. Wabash Ry. Co., 201 Mich. 167; Scott v. Brew. Co., 256 Pa. 158; Seibert v. Copp, 62 Mo. 186; Comm. Co. v. Spencer, 205 Mo. 119. (d) The ground, and the only ground, urged by plaintiffs to make this a suit in equity, is that they have lost the right to an execution by lapse of time. Loss of right to enforce the alleged assessment, by execution, under Sec. 1912, R. S. 1909 (and Kansas City v. Field, 270 Mo. 500), created no equitable right on which to maintain this suit. Baner v. Gray, 18 Mo.App. 173; 16 Cyc. 38, 39, 40; Wells Lbr. Co. v. Menominee Lbr. Co., 168 N.W. 1011; Scott v. Waynesburg B. Co., 256 Pa. 158. (f) And surely the plaintiffs' unconscionable laches in not bringing this suit for the enforcement of said assessment and the penalty thereon of fifteen per cent per annum, until more than thirteen years after the alleged cause of action accrued on the entire assessment, cannot appeal strongly to a court of equity as a reason for allowing this suit to be maintained. "It is a universal rule in equity never to enforce either a penalty or forfeiture." 2 Story, Eq. Jur. secs. 1319, 1494, 1509; Watts v. Watts, 11 Mo. 547; Cooley v. Lovewell, 95 Ark. 567; Cooley v. Lovewell, 130 S.W. 574; Hendrix v. Black, 201 S.W. 283, Annotated L. R. A. 1918D, 217; United States v. White, 17 F. 565; Fletcher v. United States, 20 F. 345. (g) Appellants' brief admits that an execution was issued for the collection of the alleged assessment before this suit was filed. To allow this suit for the alleged assessment to be maintained, would be to allow the plaintiffs to vex defendant again for the same alleged cause of action, contrary to the fine principles of equity and the maxim nemo bis vexari pro una et eadem causa. Rogers v. Brown, 61 Mo. 187; Perry v. Craig, 3 Mo. 516; Kline v. Vogel, 90 Mo. 240; Lewis v. Schwenn, 93 Mo. 26, 31; Faris v. Moore, 256 Mo. 123. (3) The defense of res adjudicata is that the judgment of the circuit court quashed the execution issued on the same judgment here sued on, on the ground that said judgment was null and void and conclusively presumed to be paid, under Sec. 1912, R. S. 1909, and the decisions of this court thereon. This point is unanswered and unanswerable by plaintiffs. In Kansas City v. Field, 270 Mo. 500, this court held that the judgment on the alleged assessment was conclusively presumed to be paid, and ordered the circuit court to quash the execution issued on said judgment, because said execution was issued more than ten years after the date of the original rendition of said judgment, when said judgment had not been revived, and no payment had been made thereon. Section 1912, there construed, expressly includes "every judgment, order or decree of any court of record," and expressly makes the same conclusive presumption of payment of the judgment, in any suit brought on the judgment after the prescribed lapse of time, as it makes against the issue of execution, to-wit, that: "Such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever." Could this statute be made plainer? (a) But to avoid the presumption of payment raised by said Section 1912, plaintiffs claim that this suit is on the assessment made in the verdict of the jury, and is not on the judgment on the verdict. Plaintiffs made the same erroneous point and argument in the other cases to sustain the execution issued on the same judgment, but the point was properly ruled against the city because it ignored entirely the provisions in Section 17 of Article X of the charter. The verdict for the assessment is like any other verdict of a jury in fieri, not full born, only a tentative thing, without efficiency until the entire required judgment of the court is entered thereon. Oklahoma City v. McMaster, 196 U.S. 533. Said Section 17 expressly provides for the "issue of execution on the judgment," and the city charter nowhere provides for the issue of execution on the assessment in the verdict. The circuit court having awarded the city judgment in full compliance with said Section 17, the plaintiffs cannot have another judgment on the same assessment for the reason that said cause of action was wholly merged in the judgment rendered. Wycoff v. Hotel Co., 146 Mo.App. 554; Gains v. Miller, 111 U.S. 399; City of Harper v. Daines, 211 F. 58; Spellman v. Chaffee, 5 Colo. 243; Crittenden v. Leitensdorfer, 35 Mo. 243; Broom's Legal Maxims (8 Ed.), p. 331; Schuler v. Israel, 120 U.S. 506; Winham v. Kline, 77 Mo.App. 46. (4) And the bar of this suit by the State's Statutes of Limitations is not at all affected by the provision in Section 20 of the Charter Park Law, making and continuing the alleged assessment a lien upon the property until all of the assessment was paid. Seibert v. Copp, 62 Mo. 187; Nevada v. Mining Co., 14 Nev. 220; San Deigo v. Higgins, 115 Cal. 170-2; San Francisco v. Jones, 20 F. 188; Board of Commrs. v. Storey, 26 Mont. 517; Kansas City v. Field, 270 Mo. 500. ...