Kansas City v. Field
Decision Date | 16 March 1917 |
Docket Number | No. 18229.,18229. |
Citation | 270 Mo. 500,194 S.W. 39 |
Parties | KANSAS CITY v. FIELD. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.
Condemnation proceedings and proceedings to assess benefits by Kansas City, wherein Richard H. Field, against whose lands an assessment of benefits was made, moved to quash an execution. From refusal to quash, movant appeals. Reversed and remanded, with direction to sustain the motion to quash.
Gage, Ladd & Small and R. H. Field, all of Kansas City, for appellant. J. A. Harzfeld, Jay M. Lee, Delbert J. Haff, Edwin C. Meservey, and Charles W. German, all of Kansas City (William C. Michaels, of Kansas City, of counsel), for respondent.
This is an appeal from the circuit court of Jackson county, wherein upon motion to that end, the court refused to quash an execution which had been levied upon the land of movant, who is appellant here.
On the 19th day of June, 1900, as the result of a certain proceeding to condemn lands for a park to be known as West Terrace Park, and to assess benefits to produce a fund to recoup the city for its outlay in payment for the condemned lands, judgment was rendered, among others, against the lands of movant. Movant did not appeal from the latter judgment, but one Catherine Mulkey appealed on her part from the judgment assessing benefits against her land, which appeal was decided against her by this court on the 30th day of June, 1903. See Kansas City v. Mulkey, 176 Mo. 229, 75 S. W. 973. Mandate was issued by this court in the last-mentioned appeal on the 11th day of July, 1903. The execution herein sought to be quashed was issued on the 12th day of July, 1913. The mandate from this court was filed in the circuit court of Jackson county on the 13th day of July, 1903. The motion to quash the execution filed by movant, so far as it is pertinent, is, caption and signature of counsel omitted, as follows:
In passing upon this motion the learned court nisi made a special finding of facts which will serve to make clear the ruling facts of the case. This special finding of facts is as follows:
If facts in addition to the above are found necessary to make clear what we find it necessary to say, we will set them out in the opinion infra.
I. The briefs are able and extremely voluminous, covering not only the points which seem to control the case, but also many interesting points afield. However, the two points, decision of which seems to settle the case, are these: (a) Does the general statute of limitations so far bar a judgment such as that here as to forbid after 10 years the issuance of an execution thereon; and (b) did the appeal of Catherine Mulkey have the effect to extend the time, or toll the statute for the period that such appeal was pending here? For convenience we sometimes refer to section 1912, infra, as a statute of limitations. Whether it be so, or merely the concrete statement of a rule of evidence, we do not decide.
That an execution may not issue upon an ordinary judgment after ten years is well-settled. For the following statute so ordains, to wit:
"Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, 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." Section 1912, R. S. 1909.
Another general statute cited and urged by movant as apposite, reads thus:
"Executions may issue upon a judgment at any time within ten years after the rendition of such judgment." Section 2133, R. S. 1909.
It is urged, however, by respondent that neither of the above statutes is applicable, but that the matter is controlled by an alleged applicable provision of the charter of Kansas City, which in full reads thus:
Section 20, Art. X, Charter, Kansas City. We have italicized the particular part of the section supra, upon which respondent relies.
Does this charter provision so far control as that execution may issue after 10 years? Passing for the present the obvious query whether the language of the charter quoted supra carries inevitably, the meaning which respondent puts on it, we do not think the provision even as construed by respondent has the effect claimed for it. It is self-evident that since Kansas City is in Jackson county and therefore an integral component of the state of Missouri, the general laws of the state run there, and will control unless the Constitution or other laws passed pursuant thereto have abdicated this right of control. If this right of control has been delegated, it comes from the below quoted pertinent provisions of our statutes. Appositely pertinent parts of section 9703, following the Constitution itself (Const. § 16, art. 9) provide:
"Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, by causing a board of thirteen freeholders, who shall have been for at least five years qualified voters thereof, to be elected by the qualified voters of such city...
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