Lindsay v. City of St. Louis

• Decision Date: 04 May 1940
• Docket Number: 36280,36040
• Citation: 139 S.W.2d 906,345 Mo. 1141
• Parties: Charlotte Clark Lindsay v. City of St. Louis, a Municipal Corporation, Anne M. Evans, Henry Ernst and Sarah Ernst, Appellants
• Court: Missouri Supreme Court

139 S.W.2d 906

345 Mo. 1141

Charlotte Clark Lindsay v. City of St. Louis, a Municipal Corporation, Anne M. Evans, Henry Ernst and Sarah Ernst, Appellants

Nos. 36280, 36040

Supreme Court of Missouri

May 4, 1940

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed and remanded (with directions to modify the decree).

E H. Wayman, Jno. T. Hicks, and Frances J Sullivan for City of St. Louis.

(1) Respondent or her predecessors in title had due notice of the proceeding for the change of grade in which respondent's property was assessed a benefit by the commissioners appointed in said change of grade suit, which assessment resulted in a benefit judgment against respondent's property. Sec. 58, Art. XXI, St. Louis Charter; St. Louis v. Ranken, 96 Mo. 505; Buddecke v. Ziegenheim, 122 Mo. 243; Eyssell v. St. Louis, 168 Mo. 616; St. Louis v. Calhoun, 222 Mo. 44; Schwab v. St Louis, 310 Mo. 116. (2) Respondent's notice to the collector of revenue of the city of St. Louis where said respondent could be notified of taxes due on her property was not notice to appellant city of St. Louis with respect to special benefit assessments, as said collector of revenue is a State officer and said notice to said collector was not binding on this appellant. Secs. 9883, 10004, R. S. 1929. (3) Appellant city of St. Louis is not under any legal obligation to notify property owners that their property is assessed a special benefit under Article XXI, of the charter of the city of St. Louis. (4) Respondent was duly notified that said property was to be sold by the sheriff pursuant to the notice of said sale in accordance with the statutes. Sec. 1198, R. S. 1929. (5) Respondent had the opportunity to move the court, granting the motion of appellant for execution, to set aside the sale made thereunder during the return term. St. Louis v. Miller, 82 S.W.2d 579; St. Louis v. Del Place Realty Co., 259 Mo. 140. (6) Inadequacy of price is not sufficient grounds to set the sale aside, especially since said sale was properly and fairly conducted. Wagner v. Phillips, 51 Mo. 117; Million v. McRee, 9 Mo.App. 344; Walters v. Hermann, 99 Mo. 529, 12 S.W. 890; Briant v. Jackson, 99 Mo. 585, 13 S.W. 91; Knoop v. Kelsey, 121 Mo. 642, 26 S.W. 683. (7) The notice published by the commissioners pursuant to Section 5 of Article XXI and the sale under the special execution pursuant to Section 1198, Revised Statutes 1929, constituted due process of law. Lohman v. Stocke, 94 Mo. 672; Harness v. Cravens, 126 Mo. 233; Harper v. Hopper, 42 Mo. 124; Young v. Schofield, 132 Mo. 650, 34 S.W. 497; Buchanan v. Atchison, 39 Mo. 503.

Anne M. Evans, Newell S. Ferry, Jr., and Atwood & Atwood for Anne M. Evans, Henry Ernst and Sarah Ernst.

(1) The general plan of the charter of the city of St. Louis, with respect to proceedings for the condemnation of private property for public use, the method of determining and assessing the damages for private property so taken or damaged, and the assessment of benefits against private property not taken or damaged, in order to create a fund out of which to pay the damages assessed is composed of two parts, separate in their legal aspects, yet combined together in the one action to make a complete and efficient procedure. The condemnation process contemplates a suit filed in the circuit court, naming as defendants therein those parties whose property is to be actually taken or used in the manner determined. This procedure is a judicial procedure, in which the rules of judicial action obtain. The parties are named and the property described; where service of summons cannot be had personally an order of publication is issued bringing in those necessary, but unserved, defendants. If no answers are filed default and inquiry is granted as in any ordinary lawsuit. If answers are filed the matter is tried and the damages determined in this legal manner. The assessment of special benefits, however, is not a judicial act, but is quasi judicial. The Legislature and the city charter require this to be done through the agency of the circuit court. The commissioners appointed by the circuit court in the condemnation suit are required to determine the district benefited by the purposes of the condemnation suit, and publish notice to the owners of property within that district, not named in the suit, and whose property is not being taken; this order of notification, required and specified by the city charter, names and specifies only the boundaries of the benefit district, and does not name the owners of the property therein. This is all the notice required by law. The owners' names are not required in the notice, nor a further description of the property. Minor irregularities in the judgment, such as referring to property in one place as item 94 and in another as item 103, not called to the attention of the trial court, and not corrected nor objected to within three years thereafter, cannot be complained of now. No default and inquiry is granted in this quasi judicial part of the condemnation suit, as the assessment of special benefits is not a judicial action. It is not necessary under either the State or the Federal Constitutions that the legislative act creating a benefit district provide any notice whatsoever to the landowners. But where notice is required by the statute or charter by authority of which the assessment is made, that notice must be given. Under the charter of the city of St. Louis this notice is required, and is stated in Section 5, Article XXI, as follows: ". . . publish in said newspaper for ten days before beginning their assessment a notice of the boundaries of the benefit or taxing district, and of the time and place. . . ." Art. XXI, Charter of the City of St. Louis; Schwab v. St. Louis, 274 S.W. 1058; St. Louis v. Bell Place Realty Co., 259 Mo. 126; Kansas City v. Field, 226 S.W. 27; Kansas City v. Jones Store Co., 28 S.W.2d 1008; St. Louis v. Senter Comm. Co., 84 S.W.2d 21, Id., 84 S.W.2d 139; Little River Drainage District v. Railroad Co., 236 Mo. 94; Houck v. Little River Drain. Dist., 239 U.S. 254; Walker v. Mills, 210 Mo. 684. (2) This statutory notice, when given, is binding on all persons interested in the property within the benefit district, and on all who acquired their interest, after the judgment is rendered, as pendente lite purchasers. Cases under point (1). Bishop of Winchester v. Paine, 11 Ves. 194; Murray v. Ballou, 1 Johns. Ch. 577; Carr v. Cates, 96 Mo. 274; O'Reilly v. Nicholson, 45 Mo. 160; Real Estate Sevs. Inst. v. Colonius, 63 Mo. 290; McIlwrath v. Holander, 73 Mo. 105; Becker v. Stroeher, 167 Mo. 306; Tice v. Hamilton, 188 Mo. 298; Mo. State Life Ins. Co. v. Russ, 214 S.W. 860; Tice v. Edmonston, 210 Mo. 411; Alexander v. Haffner, 323 Mo. 1197. The following were mechanics' lien cases: Kurtz v. Fields, 14 S.W.2d 9; Tull v. Fletcher, 196 S.W. 436; Brown v. Davis, 249 S.W. 696; McCray Lbr. Co. v. Standard Const. Co., 285 S.W. 104; Evans v. Dockins, 40 S.W.2d 508.

Hall & Todd for respondent.

(1) While respondent does not concede that the city's lien judgment was binding on respondent or her privies in title still as the city has its judgment, interest and costs, and appellant Evans has been allowed credit for the $ 85 paid to the sheriff, the question as to whether or not the special benefit assessment bound the property of respondent is a moot question, and it is elementary law that this Honorable Court will not pass on moot questions. The owner of real estate sought to be sold for taxes, general or special, is protected by the same principles as execution defendants whose land is to be sold on general or special judgments. Before their property may be sold, the owner must have actual notice. Sec. 824, Am. Jur.; Black v. Banks, 37 S.W.2d 596; Mahen v. Tavern Rock, 37 S.W.2d 564. (2) Although equity cases on appeal are tried by the Supreme Court de novo, the court will defer to the findings of the chancellor on disputed questions of fact where sustained by substantial evidence in the record. Secs. 900, 912, Am. Jur. (3) Although notice to the collector might not be constructive notice to the city, the notice given to the collector by respondent became actual notice when the comptroller's assistant obtained respondent's address from the collector. In controversies over property rights, knowledge of facts is notice if by inquiry such facts are or can be ascertained. Stewart v. Ramsay, 196 Mo. 417. (4) Where real property belonging to a defendant who resides in Missouri, but not in the subdivision of the State where the property is situated, and neither the owner nor her privies in title were served as a defendant or appeared in the suit in which an execution is issued under which such real property is to be sold, the execution plaintiff is required to cause written notice of the issuance of the execution and to what term returnable to be served on the execution defendant or other owner of the real estate as required by Section 1200, Revised Statutes 1929, and return of service to be filed in office of the clerk of the court from which the execution was issued before the execution plaintiff may proceed to have the real property of the execution defendant, so situated, sold to satisfy the judgment, as required by Section 1201, Revised Statutes 1929. Unless notice is served as required by Section 1200, Revised Statutes 1929, and return filed as required by Section 1201, id, real property of a resident of Missouri residing in another part of the State is not subject to sale under execution. Young v. Schofield, 132 Mo. 667; Black v. Banks, 37 S.W.2d 598; Mahen v. Tavern Rock, 37 S.W.2d 564. (5) Inadequacy of the price paid for real property at a sheriff's sale under execution will not alone justify ...