Kansas City v. Field

• Decision Date: 02 December 1920
• Docket Number: No. 21480.,21480.
• Citation: 285 Mo. 253,226 S.W. 27
• Parties: KANSAS CITY et al. v. FIELD.
• Court: Missouri Supreme Court

226 S.W. 27

285 Mo. 253

KANSAS CITY et al. v. FIELD.

No. 21480.

Supreme Court of Missouri, Division No. 1.

December 2, 1920.

Appeal from Circuit Court, Jackson County; Wiliam C. Thomas, Judge.

Action by Kansas City, Mo., and another against Richard H. Field. Judgment on the pleadings for defendant, and plaintiffs appeal. Affirmed.

K. M. Harber, Benjamin M. Powers, Delbert J. Haff, and Charles W. German, all of Kansas City (Haff, Meservey, German & Michaels, of Kansas City, of counsel), for appellants.

R. H. Field and John H. Lucas, both of Kansas City, Edward J. White, of St. Louis, and Cyrus Crane, of Kansas City, for respondent.

GOODE, J.

The pleadings in this case are a petition filed February 23d, 1918, and an answer, and, both parties having moved for judgment on them, the defendant prevailed.

The defendant is the owner of two parcels of land, being the west 52 feet of the south 16 feet of lot 13 and the west 52 feet of lot 14 in Coffman's addition to Kansas City. Those parcels lie in what is denominated in the petition the West Park district in Kansas City.

On April 3, 1899, the board of park commissioners of said city adopted a resolution by which certain of the lands in the West Park district were designated to be constituted into a public park called "West Terrace," as provided in article X of the charter of Kansas City which was then in force. Pursuant to the recommendation of the board of park commissioners, the common council of Kansas City, by an ordinance numbered 11430, approved April 5, 1899, provided for the condemnation for park purposes of the lands which the board of park commissioners had designated to compose West Terrace Park, and provided further that the property so condemned should be paid for by special assessments upon real estate; that all private property in the West Park district should be deemed benefited by the improvements therein proposed, and should be assessed and charged to pay for the improvements; that the asessments should be made payable in 20 equal annual installments in accordance with the charter, with other provisions not necessary to state regarding the rate of interest the installments should bear, depending upon when they were paid. Those provisions of the said ordinance No. 11430 were in accordance with the recommendations of the board of park commissioners and with section 7 and 21 of article X of the charter.

On June 3, 1899, the board of park commissioners caused a certified copy of the ordinance to be filed in the office of the clerk of the circuit court of Jackson county at Kansas City, and said court, by an order duly entered of record, appointed a day and place to impanel a jury to ascertain the compensation for the property to be taken or damaged for said improvements, and to make assessments to pay therefor.

Notice was given to all the owners of property in the West Park district, including the defendant, Field, and subsequently a jury was impaneled and a trial had to ascertain the damages to be paid and benefits to be assessed on account of the improvements. The result of the trial was that a verdict was rendered in which benefit to the amount of $92.83 was assessed against the above-described lots of the defendant, and the court thereupon adjudged that Kansas City recover in 20 equal annual installments the amount: assessed against said property in the verdict. The first installment became due May 31, 1901, and the successive installments on the 31st day of each succeeding May until all were paid, together with interest at designated rates according to the times when the installments were paid, unless they were all paid within 60 days from June 19, 1900, the date of the judgment, in which event they would draw no interest.

The court further adjudged that the several parcels of land assessed to pay for the improvements, including defendant's parcels, should be charged with a lien for the installments and the interest which might accrue on them, and that the collection of the installments might be enforced by a special execution against the lots assessed, upon the filing of a statement by the city treasurer of Kansas City with the clerk of the board of pare commissioners showing what assessments remained unpaid and againt what lots.

The petition further recites that several appeals were taken from the judgment to the Supreme Court, but were all dismissed by the Supreme Court on June 30, 1903, and the judgment of the circuit court affirmed, and that on the 13th day of July, 1903, the mandate of the Supreme Court dismissing the said appeals and affirming the judgment was filed in the circuit court of Jackson county, Mo.

The first installment of the assessment against defendant's lots fell due May 31, 1904, but was not paid within three months thereafter, and according to the judgment of the circuit court, all the unpaid installments and interest thereon at the rate of 15 per cent. per annum from May 31, 1904, became collectible. Neither were any of the other installments paid. By the charter of Kansas City the assessment for benefit accruing to the lots from the new park became a lien on the lots from April 5, 1899, as the petition avers, with a further averment that the same, with interest, is still a lien.

No special execution was issued to enforce the collection of the installments within ten years after the judgment was affirmed by this court on June 30, 1903. The petition says no such execution can now be issued, and that the charter of Kansas City provides no special method of enforcing the lien. Wherefore it is said that plaintiffs have no adequate remedy at law, or any remedy, except this proceeding in equity to enforce the lien.

The interest of the Travelers' Insurance Company, which is one of the plaintiffs in the case, is derived, according to the petition, from the following facts: On September 12, 1903, the city treasurer of Kansas City issued park fund certificates for the total amount of the assessments shown in the aforesaid verdict of the jury, as it was provided in the charter of the city might be done, and thereafter said certificates were sold to the Travelers' Insurance Company, which is the owner and holder of them.

The prayer is for a judgment against the defendant for said sum of $92.83, together with interest at certain rates, that the said judgment be declared to be a lien on the aforesaid lots of defendant, and that they be sold to pay the judgment, and for other proper relief. Such, in substance, is the petition.

The answer denied the allegation that the assessment against the said lots was a lien on them, or that they were bound for the payment of said assessment when the petition was filed. As the basis of this defense the answer says this court on March 16, 1917, in a proceeding in which all parties to this present suit were parties, determined that the alleged judgment sued on in the present case was null and void and was presumed to be paid and satisfied under section 1912, Revised Statutes 1909, that this court ordered the Jackson county circuit court to sustain the motion of the defendant to quash the execution which had been issued by said court on July 12, 1913, on said judgment, and that, pursuant thereto, said circuit court on April 16, 1917, made and entered its final order and judgment in said cause sustaining the motion and quashing the execution.

Besides that defense, the answer avers the plaintiffs did not commence this suit or any civil action on the alleged assessment, or any installment thereof, within either five or ten years after, the cause of action accrued; that the judgment was not revived, or any execution issued thereon, or any payment made thereon at any time within ten years after its rendition; furthermore that the defendant for more than ten years after the commencement of this suit had been in the actual, continuous, exclusive and adverse possession of the lots, claiming to own the same as against all persons, and as against the lien and claim of the alleged assessment and judgment sued on, and had paid all the taxes, state, county, and municipal, on the lots during said period; further, that if the plaintiffs, or either of them, ever had any cause of action in equity against the defendant, they had lost their right of action by lathes because of the fact that the cause of action, if any there was, accrued more than 13 years before this suit was commenced, and during said time the alleged judgment bore interest at the unconscionable rate of 15 per cent. per annum.

The court overruled the motion of plaintiffs for judgment on the pleadings, the substance of which we have stated, and sustained that of the defendant. The plaintiff took this appeal.

Parts of the charter of Kansas City of 1898 are relevant to the appeal, and we epitomize them in this statement of the case. Said charter provided that parks, etc., might be paid for by special assessments on the real estate situated in the park district and benefited by the improvements, and that the special assessments might be made payable at such time or times as the common council should provide by ordinance upon the recommendation of the board of park commissioners; further that the common council should by ordinance describe the property to be purchased, taken, or damaged in the course of improvement, and designate the time and mode of payment of the special assessments against benefited property, and that the proceedings for the taking and damaging of such private property for public use and the assessment of benefits should be heard and determined by the circuit court of Jackson county.

The court procedure was prescribed; among other things, that the court should appoint a day and place to impanel a jury to ascertain the compensation for the property purchased, taken, or damaged, and to make assessments to pay the compensation; also for notice to property owners to be affected.

The verdict was required to show the...