McCormick v. Clopton

• Decision Date: 28 June 1910
• Citation: 130 S.W. 122,150 Mo. App. 129
• Parties: McCORMICK v. CLOPTON et al.
• Court: Missouri Court of Appeals

130 S.W. 122

150 Mo. App. 129

McCORMICK v. CLOPTON et al.

St. Louis Court of Appeals. Missouri.

June 28, 1910.

Rehearing Denied July 12, 1910.

1. APPEAL AND ERROR (§ 194)—OMISSION OF PLEADINGS—WAIVER.

Defendants not having moved for judgment on the pleadings for omission of a reply, but the case having proceeded as though the plea of limitations and other matters of defense in the answer were traversed, the appellate court will, as defendant did, treat the traverse as waived or as formally made.

2. LIMITATION OF ACTIONS (§ 118)—"COMMENCEMENT OF ACTION."

Under Rev. St. 1899, § 566 (Ann. St. 1906, p. 595), authorizing institution of a suit by filing a petition in the clerk's office and suing out a summons thereon against defendant, a suit is "commenced," so as to arrest the bar of the statute, from the time the petition is filed, though the summons is not issued till later and after the expiration of the period of limitation, unless plaintiff directed the clerk not to issue till further orders; in which later case the suit is to be treated as not commenced till a purpose to proceed with it is manifested by causing the summons to actually issue.

3. APPEAL AND ERROR (§ 907)—PRESUMPTION.

The record proper not showing that the delay, till after the expiration of the period of limitations, in the issuance of the summons, on a petition filed before such expiration, was at plaintiff's direction, and there being no bill of exceptions showing the fact, it will be presumed in favor of the judgment for plaintiff, notwithstanding the plea of limitations, that no such direction was given.

4. MUNICIPAL CORPORATIONS (§ 485)—STREET IMPROVEMENTS—SPECIAL TAX BILLS—NAMING OWNER OF PROPERTY.

Under St. Louis City Charter, art. 6, § 25 (Ann. St. 1906, pp. 4863-4865), providing that a certified special tax bill for a street improvement shall be prima facie evidence that the work and material charged therein were furnished, and of the execution of the work, and of the correctness of the rates or prices, amount thereof, and of the liability of the person therein named as the owner of the land, charged with such bill, to pay the same, mere omission of a special tax bill to name an owner of the land does not make it invalid or unenforceable against his interest in the property; but it is enough as to his interest that he is made a defendant and given an opportunity to defend, the only difference being that as to a person having an interest in the land, and not named in the tax

bill, matters of which the tax bill, if naming him, is prima facie evidence, must be proved aliunde.

5. APPEAL AND ERROR (§ 907) — PRESUMPTION.

As against one having an interest in land against which a special tax bill not naming him issued, it will be presumed, in favor of the judgment, in the absence of anything but the record proper, that the facts of which the tax bill, if naming him, would have been prima facie evidence, were, as was necessary, proved aliunde.

6. APPEAL AND ERROR (§ 707)—FACTS SHOWN BY RECORD PROPER.

Under St. Louis City Charter, art. 6, § 25 (Ann. St. 1906, pp. 4863-4865), to render a special tax bill for street improvements valid against an owner of the property against which it is issued, it is necessary that he be given 30 days' notice of issuance of the tax bill; but, without such notice to one having an interest in the property less than what is necessary to constitute him an owner thereof, his interest may be subjected to the lien of the tax bill without his having been given such notice. The petition, in a suit on such a tax bill, averred that certain of the defendants were the owners of the property, and as to C., another defendant, who was not named in the tax bill and was not given notice of its issuance, it averred that he claimed some interest in the property, and that he was made a defendant that he might set up whatever interest he had. The answer denied that the other defendants were the owners, and averred that C. had an estate by curtesy. Though no reply was filed, the case was tried as though one was filed; and judgment was rendered against C. as though he was an interested party, but not a life tenant. As in such case, he not having been served with notice of issuance of the tax bill, judgment should have been against him. Held, that the record proper did not show C. was an owner, so as to make the judgment erroneous.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Suit by F. P. McCormick against Malvern B. Clopton and others. Judgment for plaintiff. Defendants appeal. Affirmed.

W. H. Clopton, for appellants. Barclay, Fauntleroy & Cullen, for respondent.

NORTONI, J.

This is a suit on two special tax bills issued under the charter provisions of the city of St. Louis. Plaintiff recovered, and defendants prosecute the appeal.

There is no bill of exceptions before us, and the matters open for consideration arise entirely on the face of the record proper. The questions for decision are two in number. The first relates to defendants' plea of the statute of limitations, which seems not to have been formally denied by filing a reply, though the case was tried as if one had been duly filed; and the second pertains to the fact that the petition discloses one of the defendants was neither named in the tax bills nor notified of their issue, as is essential under the charter in case of an owner of property. It appears two tax bills were issued in payment for street improvements adjacent to defendants' property, and, when issued, the Belle Bryan Clopton estate was named therein as the owner of the property on which the lien is sought to be enforced. From the allegations of the petition, we are informed that these tax bills were thereafter re-issued and re-registered by the city authorities, and, instead of the Belle Bryan Clopton estate being named as the owner, the heirs were substituted therefor. In other words, in the amended tax bills, the defendants Malvern B. Clopton, William H. Clopton, Jr., and Emily Bryan Clopton were named as the owners of the property. It appears, too, that the defendants named in the amended tax bills are the heirs of Belle Bryan Clopton, deceased. The averments of the petition go to the effect that the three defendants named in the tax bills, Malvern B. Clopton, William H. Clopton, Jr., and Emily Bryan Clopton, were duly notified of the issue of such tax bills by the service of process on them in accordance with the provisions of the city charter under which the bills were issued. The petition is in two counts, the first of which declares on one of the tax bills, and the second count on the other. In all material respects, the two counts are substantially the same. William H. Clopton, Sr., is made a party defendant, however, though his name is not mentioned in the tax bills, and the suit proceeds against him as if he had some unknown interest in the property sought to be charged with the lien. The petition as to defendant William H. Clopton, Sr., does not go to the extent of charging him as owner of the property, but instead it recites that plaintiff is informed and believes William H. Clopton, who was the husband of Belle Bryan Clopton, claims some interest in said property, and he is made a party to the suit to the end that he may set up whatever interest he may have in said property.

The answer denies that Malvern B. Clopton, William H. Clopton, Jr., and Emily Bryan Clopton are owners of the property sought to be charged with the lien, and asserts an estate in the defendant William H. Clopton, their father, by curtesy. It furthermore pleads the statute of limitations against the lien of the tax bills sought to be enforced. The limitation thus pleaded is that provided in section 25, art. 6, of the charter of the City of St. Louis as amended in 1901. See Ann. St. Mo. 1906, vol. 4, pp. 4863, 4864, 4865. Plaintiff omitted to file any reply whatever to this answer; but the case proceeded as though the plea of the statute of limitations was traversed, and the court found the issue for plaintiff to the effect that the lien was not barred by the statute referred to.

On appeal, the defendants argue the judgment of the trial court may not be sustained on the record proper for the reason the answer pleads the statute of limitations of two years, and this defense was confessed because of the fact plaintiff omitted to file a reply denying it. Of this argument it may be said, first, that, though no reply was filed denying that the statute of limitations barred the lien, the case was tried throughout as if it were traversed. For defendants to avail themselves of this matter on the face of the pleading on account of the omission of plaintiff to formally make a denial by reply, it was incumbent on them to move the trial court for judgment on the pleadings as they stood. When this is not done, the appellate courts treat the matter as having been waived by defendant and deal with the case identically as the parties did on the trial; that is to say, on appeal the defense set forth in the answer will be treated as though it were traversed by the plaintiff in a reply duly filed. Roden v. Helm, 192 Mo. 71, 83, 85, 90 S. W. 798; State ex rel. McKown v. Williams, 77 Mo. 463. In so far as the defense of the statute of limitations is concerned, it depends entirely upon the fact that a summons was not issued on the petition immediately when it was filed. In other words, it is conceded by defendants that the petition was filed in the circuit court within the two-year period of limitations prescribed by the statute invoked in the answer....