Kelly v. City of Cape Girardeau

• Decision Date: 07 January 1936
• Citation: 89 S.W.2d 693,230 Mo.App. 137
• Parties: FRANK KELLY, APPELLANT, v. CITY OF CAPE GIRARDEAU, ED. L. DRUM, FRANK BATCHELOR, PAUL BROOKS AND HARRY COFFMAN, RESPONDENTS
• Court: Missouri Court of Appeals

89 S.W.2d 693

230 Mo.App. 137

FRANK KELLY, APPELLANT, v. CITY OF CAPE GIRARDEAU, ED. L. DRUM, FRANK BATCHELOR, PAUL BROOKS AND HARRY COFFMAN, RESPONDENTS

Court of Appeals of Missouri, St. Louis

January 7, 1936

Motion for rehearing overruled January 24, 1936.

Rehearing Denied 230 Mo.App. 137 at 146.

Appeal from the Cape Girardeau Court of Common Pleas.--Hon. L. L Bowman, Judge.

AFFIRMED.

Judgment affirmed.

Dearmont Spradling & Dalton and Frank Kelly for appellant.

(1) Court erred in striking out part of the bill. 21 C. J., sec 407, page 393; School of Domestic Arts & Science v. Carr, 143 N.E. 669; same case 322 Ill. 563; Carley v. Montgomery, 46 S.W.2d 283, l. c. (2-5) 285; Sec. 785, R. S. Mo. 1929; Jarvis v. Chicago B. Q. Ry. Co., 37 S.W.2d 602; Same case, 325 Mo. 428; Bank v. Lyons, 220 Mo. 538, l. c. 551. (2) Court erred in holding remedy is barred by limitations or laches. As to limitations. Sec. 886, R. S. Mo. 1929, makes judgment good for ten years; Goddard to use v. Delaney, 181 Mo. 564; Excelsior Steel Furnace Co. v. Smith, 17 S.W.2d 378; Davis v. Carp, 258 Mo. 686; Bick v. Vaughn, 140 Mo.App. 595; Wood v. Newberry, 48 Mo. 322; Shehan & Loler Co. v. Simms, 28 Mo.App. 64; White v. Pendy, 25 Mo.App. 542; Ludwick v. Scott, 65 S.W.2d 1034. As to laches. 21 C. J., sec. 213 and notes; Chilton v. Nickey, 261 Mo. 232; Kellogg v. Moore, 271 Mo. 189; Excelsior Steel Furnace Co. v. Smith, 17 S.W.2d 378, l. c. 380; Carlin v. Bacon, 16 S.W.2d 46, l. c. (6-7) 49; Collins v. Lindsay, 25 S.W.2d 84, l. c. (6-7) 89; Jones v. McGonegle, 37 S.W.2d 892, l. c. 896, and same case, 74, A. L. R. 550 annotated; Hunter v. Hunter, 39 S.W.2d 359, l. c. (7-8) 363; Same case, 327 Mo. 817; Boals v. Garden City, 50 S.W.2d 179, l. c. (6-8) 182; Waner v. Bank of Pendleton, 65 S.W.2d 167, l. c. 171; State ex inf. Shartel ex rel. City of Sikeston v. Mo. Utilities Company, 53 S.W.2d 394, l. c. 399, (8) and (9-11). (3) The court erred in sustaining the demurrer on the ground the original decree is indefinite. 33 C. J., sec. 49; Houck v. Gross, 67 Mo. 151, l. c. 155; Jamison v. Harvey, 147 Mo. 145, l. c. 150-1. (4) The suit did not require that the city officers be served with a copy of the decree to state a cause of action. This will appear from the whole record. The court erred in holding the present city officers are not bound by the decree of May 28, 1920. 34 C. J., secs. 1431, 1457, 1458 and 1461, note 95; North St. Louis Gym Soc. v. Hagermann, 232 Mo. 693; New Orleans v. Citizens Bank, 167 U.S. l. c. 388. (5) The court erred in sustaining the demurrer on ground complainant had adequate remedy at law. 20 C. J., p. 1, sec. 1; same Vol. sec. 8, page 9; Reynolds, Receiver, v. Union Station Bank of St. Louis, 198 Mo.App. 323; Steinbach v. Murphy, 143 Mo.App. 537; Brown v. Essig, 1 S.W.2d 855; Denny v. Gyton, 40 S.W.2d 1562, l. c. (37-38), p. 592; 21 C. J., sec. 32; Bartlett v. McAlister et al., 289 S.W. 814, l. c. (9-11) 820; Powell v. Dorton, 12 S.W.2d 453, l. c. (3-4), p. 458; 46 C. J., p. 802, sec. 442; Paddock v. Somes, 102 Mo. 226, l. c., p. 240. v. 1; Foncannon v. City of Kirksville, 88 Mo.App. 279; Pinney v. Berry, 61 Mo. 359, 367; Ready v. Mo. P. Ry. Co., 98 Mo.App. 467, 470; City of Harrisonville v. Dicky Clay Mfg. Co., 61 F.2d 210-212. If the bill stated facts entitling complainant to any relief it was error to sustain the demurrer. 21 C. J., secs. 187-188; State ex rel. Frank v. Curran, 45 Mo.App. 142, l. c. 151. Courts of equity have power to enforce their decrees. 21 C. J,, secs. 865, 6 and 7; Fleming v. Elis Otis Elevator Co., 145 So. 201; People v. Marquette Nat. Fire Ins. Co., 184 N.E. 800; same case 351 Ill. 516; Root v. Woolworth, 150 U.S. 401, 37 L.Ed. 1123; Irvan v. Burgan, 288 S.W.2d 1017 (12-13) 102. Equity assumed jurisdiction of the cause in 1920, and relief not having been secured, will enforce its decree. 21 C. J., sec. 117; Phelps v. Scott, 30 S.W.2d 71, l. c. (5) 75; Boland v. Ross, 120 Mo. 208, 215; Hansen v. Duvall, S.W.2d 732, l. c. 734.

Frank Lowry for respondent.

(1) Having failed for more than ten years to institute this cause and failing for four years to prosecute it after institution plaintiff is guilty of such laches as to bar his right to litigate it now. Primm v. White, 162 Mo.App. 594; Matheson v. Hanna-Shoelkoff Co., 122 F. 836; 32 C. J. 504. (2) The cause of action is barred by limitation. R. S. Mo. 1929, secs. 886, 1513. The cause of action is bottomed on section 1513, the only authority conferred by statute touching proceedings for violation of an injunction decree, and, of course, must be instituted by citation or by attachment and not by summons. Thompson v. Farmers Exchange Bank, 62 S.W.2d l. c. 812 (22). The date of the decree being May 28, 1920, and the date of service of citation being May 29, 1930, ten years had therefore elapsed. The trial court treated this action as a proceeding in the nature of a criminal proceeding, which construction is correct. In re: Heffron, 179 Mo.App. 640, 162 S.W. 652. And that the limitation as to misdemeanors applied. R. S. Mo. 1929, sec. 3393; 32 C. J. 503; Beattie v. People, 32 Ill.App. 651; Gompers v. Buck Stove Company, 221 U.S. 418. The third amended petition was filed fourteen years and seven months after the date of the original decree. It does not cure this defect. Arpe v. Mesker Bros. Iron Co., 19 S.W.2d 668; Bombeck v. Devoriss, 19 Mo.App. 38. New defendants, brought in after commencement of action can plead the statute even though original defendants could not. Jaicks v. Sullivan, 128 Mo. 177, 30 S.W. 890, Hiller v. Schulte, 184 Mo.App. 42, 167 S.W. 461. (3) The original decree is indefinite, uncertain and ambiguous. It is capable of two different interpretations and is therefore not sufficiently specific to render defendants liable for violation thereof. 32 C. J. 492; Mo. R. R. Co. v. Hoereth, 144 Mo. 136; Magel v. Benevolent Society, 203 Mo.App. 335; Primm v. White, 162 Mo.App. 594; In re Heffron, 179 Mo.App. 639. (4) The original decree of the court of common pleas was never served upon defendants Frank Batchelor, Paul R. Brooks and Harry Coffman to this day, nor upon the City of Cape Girardeau and Edward L. Drum, Mayor, until after ten years had elapsed, and this suit instituted. The original decree must be personally served upon the defendants before they can be held liable for contempt. 32 C. J. 486. (5) The present defendants cannot be held liable for acts, committed or omitted by their predecessors in office. Pickering v. Willow Springs, 208 Mo.App. 230 S.W. 352. (6) The petition discloses that appellant has an adequate remedy at law. The records of the Cape Girardeau Court of Common Pleas show eight damage suits, numbers 5471; 5978; 6031; 6174; 6933; 7456; and two others were instituted and tried between this plaintiff and these defendants--all arising from the water condition complained of and each suit asked punitive damages for the failure of defendants to comply with the original decree of said court. Five of them have reached the appellate and Supreme Courts (Kelly v. Cape Girardeau, 260 S.W. 801; 284 S.W. 521; 60 S.W.2d 80; 72 S.W.2d 880; and one case decided on November 13, 1935, by the Supreme Court). These suits will be judicially noticed. That plaintiff has a remedy at law has been adjudicated. "Then the plaintiff has a right to successive action for damages resulting therefrom." Kelly v. Cape Girardeau, 284 S.W. l. c. 524-5. And "So also are settled the questions of defendants' liability for damages, and that plaintiff is entitled to bring a new suit for recurring damages each time his property is flooded." And "In the former appeal to this court (Kelly v. Cape Girardeau, supra) we held that maintenance of insufficient storm sewers was a continuous tortious act which gave rise to successive causes of action each time plaintiff was damaged by reason of the flooding of his premises." Kelly v. Cape Girardeau, 72 S.W.2d 880; Pinny v. Berry, 61 Mo. 359; Dickson v. R. R., 71 Mo. 575; Horine v. Peoples Oil Company, 200 Mo.App. 233; Prim v. White, 162 Mo.App. 594; Victor Co. v. Morning Star Co., 50 Mo.App. 594. (7) Under the law a municipal corporation cannot be held liable for contempt. 32 C. J. 850,--p. 490; State v. Coffeyville, 90 Kan. 164; Crucia v. Behman, 147 La. 144; Bass v. Schopee, 27 Minn. 250, 4 N.W. 619; People v. Sturdivant, 9 N.Y. 236; Forsythe v. Winans, 44 Ohio St. 277, 7 N.E. 13; Palmer v. Pittsburg Constr., 40 P. A. Sup. 203; Jones v. Sewer Improvement Dist., 119 Ark. 166, 177 S.W. 888. (8) The right to ask equitable relief in this matter has been waived by the long delay in filing this suit and the institution and trial of numerous damage suits arising out of the same situation. Points and authorities under 1 and 6 supra. (9) As appellant contends that this suit is not an action for contempt for violation of the decree of the Cape Girardeau Court of Common Pleas, respondent directs the court's attention respectfully to the following digest of the third amended petition: The 1st, 2nd, and 3rd paragraphs describe defendants. The 4th paragraph describes the original suit, the defendants, the location of plaintiff's property and various streets in said original suit. The 5th and 6th paragraphs describe further the streets and storm water thereon as alleged in said original petition. The 7th paragraph recites the prayers of said original petition. The 8th paragraph tells of service on original defendants and their answer. The 9th and 10th paragraphs recite further defenses offered and the original decree of the court set out verbatim. The 11th paragraph recites that said decree is final. The 12th paragraph recites noncompliance with said decree and "but have stubbornly, willfully, persistently and with contempt for the judgment and decree of this...