Kansas City v. Field

• Citation: 194 S.W. 39,270 Mo. 500
• Parties: KANSAS CITY v. RICHARD H. FIELD, Appellant
• Decision Date: 30 March 1917
• Court: United States State Supreme Court of Missouri

194 S.W. 39

270 Mo. 500

KANSAS CITY v. RICHARD H. FIELD, Appellant

Supreme Court of Missouri, Second Division

March 30, 1917

Appeal from Jackson Circuit Court. -- Hon. Joseph A. Guthrie, Judge.

Reversed and remanded (with directions).

Gage Ladd & Small and R. H. Field for appellant.

(1) The execution was unauthorized and void because not issued within ten years from June 19, 1900, the date of the original rendition of the judgment. R. S. 1909, sec. 2133; George v. Midaugh, 62 Mo. 549; Goddard to use v Delaney, 181 Mo. 571; R. S. 1909, sec. 1912; Martin v. St. Louis, 139 Mo. 260; Eysell v. St. Louis, 168 Mo. 607; St. Louis v. Realty Co., 175 Mo. 63; Dreyer v. Dickman, 131 Mo.App. 660; Dorland v Smith, 93 Cal. 120; New York v. Colgate, 12 N.Y. 140. (2) The judgment or order for the recovery of the benefit assessment in this proceeding, against appellant's lands, was conclusively presumed to be paid and satisfied, when the execution was issued, because more than ten years had elapsed, "after the date of the original rendition thereof," with no revival of the judgment nor any payment thereon within ten years before the issue of the execution. R. S. 1909, sec. 1912. And see, on the presumption of payment, prescribed in section 1912: Davis v. Carp, 258 Mo. 687; Cobb v. Houston, 117 Mo.App. 645; Chiles v. School District, 103 Mo.App. 240. See also: Gaines v. Miller, 111 U.S. 399. The presumption of payment of judgments, created by the provision in section 1912 of the Revised Statutes, is a rule of evidence, in legal effect, the full equivalent of proof of actual payment of a judgment. It is more. It is a presumption that cannot be rebutted by counter proof, that the judgment has not been paid; not even by proof of a solemn admission of the judgment debtor that the same has not been paid. This was said by this court of a like statute. Baker v. Stonebraker's Adm., 36 Mo. 349. And the like presumption of payment has elsewhere been applied to judgments, in rem and for taxes, which were made a lien until paid. Fisher v. Meyer, 67 N.Y. 74; In re Asher's Estate, 202 Pa. 422, 90 Am. St. 658; Carter v. Turnpike Co., 208 Pa. 565; Hayes Appeal, 113 Pa. 380; Brian v. Tims, 10 Ark. 597. (3) The fact that the city has received payment from other persons on other pieces of property, within ten years before the date of the execution, is immaterial to the issue here on the assessment against appellant's property on which the city claims no payment: Because (a) as said by this court in Kansas City v. Block, 175 Mo. 443, "the judgment is not an entirety, the interests of the parties are independent of each other;" and (b) because no payment is "entered upon the record" of the judgment. A payment on the judgment, unless "duly entered on the record thereof," does not save the judgment from the statute. R. S. 1909, sec. 1912. (4) The general statute cited applies to the adjudication, for the recovery of the special benefits in this proceeding, whether it be considered a judgment or only an order of the court, because said section 1912 expressly includes "every judgment, order or decree of any court of record." Plum v. Kansas City, 101 Mo. 532; Shickle v. Watts, 94 Mo. 411, 420; Lafayette Company v. Wonderly, 92 F. 316. (5) The circuit court proceeding, in this action, as provided for in the Kansas City charter, is a judicial proceeding from start to finish. Kansas City Charter, Annotated 1898, art. 10, secs. 11 to 17. (6) Section 17, article 10, of said city charter expressly names the adjudication for the recovery of the benefits assessed in this proceeding a "judgment," and provides for its enforcement by "execution" and not otherwise. Being made enforcible by execution, the adjudication is, in substance and effect, indisputably a judgment. St. Louis v. Realty Co., 259 Mo. 126; Kansas City v. Ward, 134 Mo. 183; Plum v. Kansas City, 101 Mo. 532. (7) And such adjudication is fortified against attack, both collaterally and on appeal, because it is a judgment in a judicial proceeding. Kansas City v. Plum, 101 Mo. 531; Leonard v. Sparks, 117 Mo. 115; Kansas City v. Burk, 118 Mo. 309, 327; Kansas City v. Duncan, 135 Mo. 517; Kansas City v. Bacon, 147 Mo. 275; Martin v. St. Louis, 139 Mo. 260; Connors v. St. Joseph, 237 Mo. 613; Kansas City v. Mastin, 169 Mo. 88; Robinson v. Levy, 217 Mo. 513; Skillman v. Clardy, 256 Mo. 321; Kansas City v. Block, 175 Mo. 443; Brunn v. Kansas City, 216 Mo. 115. (8) And this judgment for benefit assessments is subject to the general statutes of limitation. Dorland v. Smith, 93 Cal. 120; Colgate v. New York, 12 N.Y. 140; Donnelly v. Brooklyn, 121 N.Y. 18; Dousman v. St. Paul, 23 Minn. 394; Duncan v. Ry. Co., 22 Mo.App. 614; Martin v. St. Louis, 139 Mo. 260. And is subject to the same presumption of payment as ordinary judgments. Fisher v. Meyer, 67 N.Y. 74; In re Asher's Estate, 202 Pa. 422; Carter v. Turnpike Co., 208 Pa. 565. (9) The fact that the city charter might have made this proceeding administrative by its own officers, wholly outside of the State agency of the circuit court, does not render the circuit court proceeding provided, any the less a judicial proceeding, nor any the less subject to the State statutes concerning judgments and executions. Skillman v. Clardy, 256 Mo. 320; Haag v. Ward, 186 Mo. 326-344; Robinson v. Levy, 217 Mo. 513. (10) The general statutes concerning judgments and executions apply to special judgments and special executions. R. S. 1909, sec. 2172; Smith ex rel. v. Rogers, 191 Mo. 344; Skillman v. Clardy, 256 Mo. 320; Kansas City v. Woerishoeffer, 249 Mo. 26; Plum v. Kansas City, 101 Mo. 530; Groner v. Smith, 49 Mo. 323; Eyssell v. St. Louis, 168 Mo. 607; Duncan v. Railroad, 22 Mo.App. 614; Haag v. Ward, 186 Mo. 326-344; Kansas City v. Smith, 238 Mo. 338; Railroad v. Swan, 120 Mo. 35; Crittenden v. Leitensdorfer, 35 Mo. 243; Green v. Dougherty, 55 Mo.App. 217. (11) This court has been uniformly against inferring any exception to such comprehensive general statutes. Bolton v. Landsdown, 21 Mo. 400; Crittenden v. Leitensdorfer, 35 Mo. 243; Lafeyette Co. v. Wonderly, 92 F. 313; Plum v. Kansas City, 101 Mo. 530; State ex rel. v. Dirckx, 211 Mo. 581; Skillman v. Clardy, 256 Mo. 320. (12) The city could have had the execution issued in 1904, for all of the benefits assessed, on and after default upon the first installment of the benefits assessed. Last clause Sec. 21, art. 10, City Charter, Annotated 1898, p. 182; Jaicks v. Murrill, 201 Mo. 101. (13) The general statute ran on the judgment "from the date of the original rendition thereof," notwithstanding the judgment for special benefits was payable in successive annual installments. In point: Dreyer v. Dickman, 131 Mo.App. 660. See also: George v. Midaugh, 62 Mo. 549; Cobb v. Houston, 117 Mo.App. 645. (14) The Mulkey appeal did not suspend nor interrupt the running of the general Statute of Limitations on the judgment "from the date of the original rendition thereof;" and the time of the pendency of that appeal is not to be deducted in computing the ten-year limitation against execution on the judgment. Christy v. Flanagan, 87 Mo. 670; Green v. Dougherty, 55 Mo.App. 217; Eysell v. St. Louis, 168 Mo. 620; Deposit Co. v. Schuchman, 189 Mo. 472; Ins. Co. v. Hill, 17 Mo.App. 590; Richardson v. Harrison, 36 Mo. 96; Dorland v. Smith, 93 Cal. 120. And this is plainly so, because the only thing the statute permits to extend the life of the judgment, "after ten years from the date of the original rendition thereof," is a revival of the judgment or a payment thereon. R. S. 1909, sec. 1912. (15) The Kansas City charter, not having prescribed any time or condition after which the judgment should be presumed paid, nor any limit of time within which execution should issue thereon, the cited general Statutes of Limitation and presumption of payment apply to such judgments and executions Pleadwell v. Glass Co., 151 Mo.App. 63; Plum v. Kansas City, 101 Mo. 530; Railroad v. Swan, 120 Mo. 35; Const. Co. v. St. Louis, 231 Mo. 591; Kansas City v. Smith, 238 Mo. 338; Skillman v. Clardy, 256 Mo. 319. (16) And a fortiori, this proceeding is subject to the general Statute of Limitation, because the State Constitution, under which Kansas City framed and adopted its charter, in terms made Kansas City and its charter-making "subject to the Constitution and laws of the State." Constitution, art. 9, sec. 16; Mullins v. Kansas City, 188 S.W. 193; Haag v. Ward, 186 Mo. 326.

J. A. Harzfeld, Jay M. Lee, Delbert J. Haff, Edwin C. Meservey and Charles W. German for respondent; William C. Michaels of counsel.

(1) The Kansas City charter provisions control the issuance of execution to enforce the collection of assessments involved in this case. Murnane v. St. Louis, 123 Mo. 479; Kansas City v. Scarritt, 127 Mo. 642; St. Louis v. Gleason, 15 Mo.App. 25, 93 Mo. 33; State ex rel v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; St. Louis v. Dorr, 145 Mo. 466; Stevens v. Kansas City, 146 Mo. 460; Kansas City v. Bacon, 147 Mo. 259; Meier v. St. Louis, 180 Mo. 391; Morrow v. Kansas City, 186 Mo. 675; St. Louis v. Liessing, 190 Mo. 464; St. Louis v. DeLassus, 205 Mo. 578; Paving Co. v. Meservey, 103 Mo.App. 186; Construction Co. v. Coal Co., 205 Mo. 63; Brunn v. Kansas City, 216 Mo. 108; Sec. 3707, R. S. 1899; Stanton v. Thompson, 234 Mo. 11; State ex rel. v. Seehorn, 246 Mo. 556; Paving Co. v. Harvard, 248 Mo. 280; Sec. 7181, R. S. 1909; Kansas City v. Woerishoeffer, 249 Mo. 1; Paving Co. v. Field, 134 Mo.App. 668; Charter of Kansas City 1898, sec. 8 to 28, art 10; Charter of Kansas City 1909, sec. 8 to 28, art. 13; Smith v. Mitchell, 33 Am. Dec. 119; 5 Words and Phrases, p. 4165; Riddlesbarger v. Ins. Co., 74 U.S. 386; Sec. 4944, R. S. 1909; St Louis v. Realty Co., 259 Mo. 126; Kansas...