Kemper v. King

• Decision Date: 15 November 1881
• Citation: 11 Mo.App. 116
• Parties: E. G. KEMPER, Appellant, v. MARY C. KING, Respondent.
• Court: Missouri Court of Appeals

11 Mo.App. 116

E. G. KEMPER, Appellant,

v.MARY C. KING, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 15, 1881.

1. An order substituting one party for another will not be made by an appellate court upon a mere suggestion.

2. In a suit to establish a lien, an appellate court will not, upon the suggestion that the land sought to be charged has been sold, order the purchaser brought in and made a party.

3. A municipal corporation may make a new contract for the completion of street improvements, if a former contract to make the improvements has been abandoned.

4. In assessing the cost of the work done under the new contract, the city engineer need not take into consideration work done under the abandoned contract.

5. The ordinance under which the first contract was made furnishes authority for making the new contract to complete the improvements begun under the first.

6. In estimating the cost of street improvements, the city engineer should not include a small, fragmentary, outlying piece of work, but should make it the basis of a separate estimate and assessment.

7. The charter of the city of St. Charles authorizes the repairing and construction of sidewalks, for one or more blocks, wherever the centre of the street has been macadamized, at the cost of the abutting property-holders.

8. The cost of street improvements which are a charge upon abutting property must be assessed against each lot separately.

9. Where the owner of two contiguous lots erects his residence upon the dividing line and encloses them as one, they may be considered as one in the assessment for street improvements.

APPEAL from the St. Charles Circuit Court, EDWARDS, J.

Reversed and remanded.

H. C. LACKLAND, for the appellant: That a contract for street improvement embraces disconnected streets or parts of streets, will not prevent a recovery on a special tax-bill issued therefor.-- Neenan v. Smith, 60 Mo. 292. The process by which the city engineer reached the amount of the assessment of the cost need not appear upon the tax-bill.-- Haegle v. Mallinkrodt, 3 Mo. App. 329; Cramer v. Allen, 3 Mo. App. 545.

T. F. McDEARMON and A. KING, for the respondent: The contract was not in conformity with the ordinance, and the apportionment was not of the whole cost of the work.-- Eyerman v. Hardy, 8 Mo. App. 311; Miller v. Anheuser, 4 Mo. App. 436; Kefferstein v. Holliday, 3 Mo. App. 569. The street upon which the sidewalks were laid was not macadamized along the centre for the entire distance embraced in the ordinance.-- Perkinson v. Partridge, 3 Mo. App. 580; Kinealy v. Gay, Mo. App. _____; The State ex rel. v. Barlow, 48 Mo. 17; St. Louis to use v. Clemens, 43 Mo. 395; Ruggles v. Collier, 43 Mo. 353; Anderson v. St. Louis, 47 Mo. 477; Sexton v. St. Louis, 60 Mo. 153.THOMPSON, J., delivered the opinion of the court.

At the last term, the death of the respondent, defendant below, Frank C. King, was suggested, and we awarded a citation to bring in Mary C. King, who, it was suggested, was his sole heir at law. The citation was issued, served in compliance with the statute, and Mary C. King appeared by her guardian, and moved to dismiss the cause as to her, on the ground that, since the death of F. C. King, her father, all the right, title and interest of the said F. C. King in and to the land against which it is here sought to establish a lien for special taxes, has passed by a sale under a deed of trust, to the Covenant Mutual Life Insurance Company. We overruled this motion, on the ground that one party cannot be substituted for another in such a case as this, upon a mere suggestion; that there must be proof, or an admission by the adverse party, of the facts claimed, to make it proper to substitute the new party. We also overruled at the last term a motion of the plaintiff to bring in the Covenant Mutual Life Insurance Company, and to substitute it as the party defendant. It is obvious that, in a proceeding the only object of which is to establish a lien upon real estate, the course of justice ought not to be delayed by bringing in new parties, whenever it shall be suggested that there has been a transfer of the land in question. No hardship in this case will accrue to Mary C. King, by reviving the suit against her as sole heir at law of the party who was the original defendant, since there can be no personal judgment against her, she not being the personal representative of F. C. King; but the whole judgment, including the judgment for costs, will necessarily run against the land only. As to the rights of the Covenant Mutual Insurance Company, it has purchased, if at all, with notice of a lis pendens, and if it had desired to do so, it might have come in and made itself a party by its own voluntary act.

Upon the merits, this case is a suit brought by E. G. Kemper, who did certain curbing, guttering, and sidewalking in front of a lot of ground in the city of St. Charles, belonging at the time to F. C. King, deceased, upon the special tax-bill issued to him therefor by the city engineer of said city, to establish a lien therefor against the property. The cause was tried in the circuit court without a jury, and judgment was given for the defendant.

By the charter of the city of St. Charles it is provided: “The mayor and city council shall have power to cause the construction and repairs of all sidewalks, crosswalks, and alleys within the city, at such time and such extent, and of such dimensions and material, and in such manner and under such general regulations, as shall be provided by ordinance.” Acts of 1869, chap.--, sect. 10.

The cost of paving, guttering, and curbing of sidewalks, and the cost of all reconstructions, and also the cost of grading and paving all alleys within the city, shall, in all cases, be paid by the owners of the property in the vicinity of the work, in such manner as shall hereinafter be provided, and as may be further provided by ordinance; provided, that sidewalks may be ordered and paved only when the streets to where such sidewalks may be located shall be first paved or macadamized in the centre thereof.” Ibid., sect. 11.

Whenever any of the above-mentioned work shall have been fully completed under authority of ordinance, the city engineer, or other officer having charge of the work, shall compute the cost thereof, and assess it as a special tax against the adjoining property fronting upon the work done, in proportion to their respective fronts; he shall deliver a properly certified copy of said assessment to the city register, who shall then make out a certified bill of such assessment against the lot of ground chargeable with the work done, in the name of the owner thereof, and shall be required to keep a record of such bill or account in a properly bound book in his office, and such book shall be subject to the inspection of any citizen, and he shall, on the presentation of the receipted bill, be required to enter satisfaction on the margin of his record of said bill; said certified bill shall be delivered to the contractor for the work, who shall proceed to collect the same by ordinary process of law, in his or her name; and in case the owner be a non-resident of the state, suit may be brought by attachment, or by any other process known to the law; and such certified bill shall be a lien against the lot of ground described therein, and shall bear interest at the rate of ten per cent per annum for thirty days after its issue to the contractor, unless sooner offered to be paid; and if not paid, nor offered to be paid, within six months after its issue, it shall bear interest from its issue until paid, at the rate of fifteen per centum per annum; and every such certified bill shall, in any action brought to recover the amount thereof, be prima facie evidence that the work and materials charged in such bill have been furnished, and of the liability of the person therein named as the owner of such property. Justices of the peace shall have the power to render a special judgment, and the same may be enforced as in the case of delinquent taxes; provided, that nothing in this section contained shall be so construed as to prevent the party charged with the payment of such bill from pleading in reduction of the amount of the same, that the work therein mentioned was not done in a good and workmanlike manner; and provided further, that if the party charged shall set up, by way of defence, that the work was not done in a workmanlike manner, and that such party, before the commencement of the suit, tender to the contractor the full value of such work as done, and shall establish the same on the trial, the recovery shall only be for the amount so tendered, and judgment for the costs shall be rendered against the plaintiff. The city shall not be liable in any manner whatever for, or on account of, any work done, and which is to be paid for in the manner provided by this section.” Ibid. sect. 12.

On June 18, 1870, the following ordinance was passed by the city council of the city of St. Charles, and approved by the mayor:--

“Section 1. The city engineer is hereby authorized and empowered, whenever thereto requested and ordered by the city council, to construct guttering and curbing, alter, widen, extend, establish, grade, pave, or otherwise improve, clean, and keep in repair all sidewalks, alleys, avenues, lanes, drains, and sewers within the corporate limits of the city; provided, however, that said work, of whatever description, shall be performed in the manner and according to the specifications already or hereafter to be provided by ordinance.

Section 2. The city engineer is further authorized and empowered, upon the order or request of the city council, without further provision by ordinance or otherwise, to do any of the work mentioned in the preceding section, conforming in the manner of executing said work to the laws already provided, and that may hereafter be provided for that purpose, allowing to the city...