Koch v. Shepherd

• Decision Date: 24 March 1917
• Docket Number: No. 1974.,1974.
• Citation: 193 S.W. 601
• Parties: KOCH v. SHEPHERD et al.
• Court: Missouri Court of Appeals

193 S.W. 601

KOCH v. SHEPHERD et al.

No. 1974.

Springfield Court of Appeals. Missouri.

March 24, 1917.

Appeal from Circuit Court, Jasper County, Division No. 2; D. E. Blair, Judge.

Suit on a special tax bill for a sewer by V. E. Koch against Edward Lee Shepherd and another. Voluntary dismissal as to defendant named, and judgment entered declaring bill a lien against property owned by defendant J. W. Boyd Grain & Commission Company, and it appeals. Affirmed and modified.

C. V. Buckley, of Joplin, for appellant. Pearson & Butts, of Joplin, for respondent.

FARRINGTON, J.

It appears from the record that this suit was commenced by filing a petition in the circuit court of Jasper county on the 1st day of February, 1916, wherein the plaintiff was V. E. Koch, and Edward Lee Shepherd was defendant. The suit was brought on a special tax bill issued by the city of Joplin on the 16th day of February, 1911, for the construction of a sewer. It appears that on the 14th day of February, 1916, Edward Lee Shepherd transferred the lot against which the tax bill stood as a lien to the defendant and appellant J. W. Boyd Grain & Commission Company. On the 15th day of February, 1916, by interlineation, the last-mentioned defendant was made a party to the suit. The action was voluntarily dismissed as to the defendant Shepherd. The principal sum named in the tax bill for which the petition asks judgment is $25.77, and, a jury being waived, judgment was rendered by the court, declaring that the special tax bill be a lien against lot 18 in block 9 in East Joplin City, now a part of Joplin, and that the amount due on said special tax bill was $48. From that judgment the appellant brings the case here, alleging five errors, which we will take up in the order stated.

It is first charged that the court erred in holding that the plaintiff's cause of action was not barred by the statute of limitations in that the lien, if any, began on February 14, 1911, and continued until February 14, 1916, and therefore had expired when this suit was filed against appellant on February 15, 1916, it being contended that the lien commenced to run on the date that the ordinance was passed approving the work and ordering the tax bill to be issued, which, according to the record, occurred on the 14th day of February, 1911. This contention is without any merit whatever, and the cases cited by appellant, namely, Moberly ex rel. v. Hassett, 127 Mo. App. loc. cit. 14, 106 S. W. 15, and Turner v. Burns, 42 Mo. App. 94, are not in point, and deal with the question of the right of the contractor to have the city issue the tax bills, and not with the question of the time specified by statute that the lien shall exist. On turning to section 9241, R. S. 1909, we find it is provided that every such certified bill (referring to sewer special tax bills) shall be a lien against the lot of ground described therein, and shall bear interest at the rate of 8 per cent. per annum from 30 days after the issue thereof, etc. This section differs from other special tax bill sections, such as section 9254, R. S. 1909, wherein it specially provides that the lien shall be for a period of five years after date of issue. There being no special time named in the sewer tax bill (section 9241), the general five-year statute will be the limitation, and the statute provides that the certified bill shall be a lien.

The certified bill in this case was issued on the 16th day of February, 1911. The suit was therefore begun in the circuit court against the original owner, Shepherd, and the appellant owner before five years had expired after the issue of the bill February 16, 1911. The suit was commenced, so far as the appellant was concerned, on the 15th day of February, 1916, the day on which the summons was ordered issued, and the summons was served within a reasonable time. Moore v. Ruxlow, 83 Mo. App. 51; McGrath v. Railroad, 128 Mo. 1, 30 S. W. 329.

It is perfectly obvious that no right existed or accrued to enforce the lien created by the tax bill until it was issued which would date in this case from the 16th day of February, 1911, and that was certainly a reasonable time after the ordinance was passed on the 14th authorizing its issue. See Clemens v. Knox, 31 Mo. App. loc. cit. 198; Mercantile Trust Co. v. Niggeman, 119 Mo. App. loc. cit. 62, 96 S. W. 293; Folks v. Yost, 54 Mo. App. 55.

Actions on special tax bills are proceedings in rem, and parties defendant may be brought in by amendment though original defendants are not the owners. Sections 1849, 1850, R. S. 1909; Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. loc. cit. 259, 146 S. W. 1142, 40 L. R. A. (N. S.) 119, Ann. Cas. 1913C, 1200.

The next assignment is that the trial court erred in holding that plaintiff could recover on the tax bill for anything in excess of the face of the bill, and that all excess, being penalty, was barred in...