Lovitt v. Russell

• Decision Date: 03 April 1897
• Citation: 40 S.W. 123,138 Mo. 474
• Parties: LOVITT v. RUSSELL.
• Court: Missouri Supreme Court

40 S.W. 123

138 Mo. 474

LOVITT v. RUSSELL.

Supreme Court of Missouri, Division No. 2.

April 3, 1897.

JUDGMENTS — COLLATERAL ATTACK — SPECIAL ASSESSMENTS — ABATEMENT.

1. One whose land was sold on execution to satisfy a judgment of the circuit court assessing benefits in a condemnation proceeding could not, in an action to quiet title, attack the title of the purchaser on the ground of irregularities in said proceeding not going to the jurisdiction.

2. The circuit court did not lose jurisdiction of a proceeding to assess benefits resulting from the opening of a street by continuing the proceeding from term to term, notwithstanding a provision of the city charter requiring trial at the first term.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Elizabeth Lovitt against J. A. Russell. The court found in favor of defendant, and dismissed plaintiff's petition. From an order granting a new trial, defendant appeals. Reversed.

Kinley, Carskadon & Kinley, for appellant. C. S. Palmer, for respondent.

GANTT, P. J.

This was a suit brought by the plaintiff to quiet title to all of lot 90, Altamont, in Kansas City, Mo., except five feet off the east end of said lot, and to have a sheriff's deed held and declared void. The controversy arises over proceedings to condemn five feet off the east end of lot 90, Altamont, for the purpose of widening Brooklyn avenue in said city. The proceedings were begun in the mayor's court of the city of Kansas City, in pursuance of the charter, on July 10, 1888, at which time the title to said lot was in Zachariah P. Arnold, Cornelius Maloney, Charles Finley, Martin Regan, and John F. Williams, Jr., all of whom, it is conceded, were legally brought into said mayor's court by virtue of personal service or publication. On the 30th day of November, 1888, the above-named parties, the owners of said lot, conveyed the same to T. C. Alexander, and he on the same day conveyed said lot to H. C. Arnold; and on the 15th day of April, 1889, said Arnold and wife conveyed said lot to plaintiff by warranty deed, with reservations as follows: "Subject to a deed of trust dated January 17th, 1887, and recorded in Book B 190, at page 369, to secure a note of even date for $700, and interest at 8 per cent; also, condemnation of five feet in Brooklyn, and grading Thirtieth street." The clauses of warranty also excepted above incumbrances. On November 13, 1888, the mayor of Kansas City made an order impaneling a jury to assess benefits and damages caused by such widening of said Brooklyn avenue; and on March 29, 1889, the mayor's jury returned a verdict, and same was on that day filed with the city clerk. On the 6th day of April, 1889, as required by the charter of Kansas City, the verdict of the jury was confirmed by the common council, and on the 9th day of April, 1889, the mayor made the proper order provided by the charter to be made by such officer after confirmation. Up to this period, it is conceded by plaintiff that all proceedings in regard to this lot were legal and regular. On April 11, 1889, on April 17, 1889, and on April 24, 1889, affidavits for appeal were filed in the office of the city clerk; and on May 16, 1889, a complete transcript of all proceedings therein were filed in the office of the clerk of the circuit court of Jackson county, Mo. On June 22, 1889, a jury was selected to assess damages and benefits in such proceedings (this was during the April term of that year). On June 28, 1889, the court made an order excusing the jury until July 6th. The next entry of record is of date October 12, 1889 (still during the April term of that year), at which time the court made an order that the jury be allowed to report their verdict on October 26th (this being during the October term of that year). On October 26th the jury filed its verdict or report, and on October 30th a motion for a new trial was made; and on February 24, 1890, the verdict of the jury was confirmed. On December 20, 1890, a motion was filed by Charles F. Quest and Margaret Quest to set aside the jury's verdict and the judgment rendered under said proceedings, which motion was on February 7, 1891, sustained. On February 28, 1891, the city counselor filed a motion to retax the costs, which on February 28th was sustained. On July 11, 1891, by order of court, the proceedings were transferred from division No. 2 to division No. 1, because division No. 2 was about to adjourn; and on July 15th division No. 1 made an order continuing the proceedings to the first day of the next October term, being the 12th day of October, 1891. On October 12th the proceedings were continued to November 2d, on November 2d the proceedings were continued to November 7th. On November 7th the city counselor asked that Nannie E. Long be made a party, and the proceedings were continued to November 21st. On November 21, 1891, the city counselor showed to the court that the old verdict had been set aside, and asked that new notices be sent out in the same way the original proceeding was started in the mayor's court, setting the day of hearing for January 11, 1892. On January 11, 1892, proof of service was made, and the court ordered publication to those not served, and adjourned the proceedings until January 22, 1892. On January 22, 1892, the proceedings were adjourned to January 25, 1892. On January 25th a jury was selected, and the proceedings were continued to January 30th. On January 28th C. Frank made a motion to be allowed to be made a party. On January 30, 1892, the proceedings were continued to February 1st. On February 1st the hearing was begun and continued to the 2d, and it was further continued to the 3d. On February 3d an order was made extending the time for the jury to report their verdict until February 20th. On February 20th the jury filed their verdict and were discharged. On May 2, 1892, the court made an order confirming the verdict and finding of the jury, and further adjudging the amount assessed against the respective properties to be a lien against such properties, and that the owners of property taken be compensated in the amount awarded by the jury. The lot in controversy was found to be damaged in the sum of $54 and benefited to the amount of $60.25. After the lapse of the proper time under the charter, an execution was ordered by the treasurer of Kansas City to be issued by the clerk of the circuit court against property against which benefits were assessed, which was done, and placed in the hands of the sheriff of Jackson county, who, after proper advertisement, sold the same, including the lot in question; defendant becoming the purchaser thereof, and receiving a sheriff's deed therefor. The petition also alleged collusion and conspiracy between bidders, but on the trial this was explicity...