Michael v. City of St. Louis
Decision Date | 12 December 1892 |
Parties | MICHAEL et al. v. CITY OF ST. LOUIS. |
Court | Missouri Supreme Court |
1. Where a city has condemned property for the purpose of opening a street, awarded damages therefor, and assessed the benefits on the various property holders, the question whether the city had acquired title to the property sought to be condemned by dedication or relinquishment from the owners thereof before the condemnation proceedings were initiated is triable only in the proceedings to condemn, and cannot be raised in suits to enforce the tax bills, nor in a collateral suit by the owners of the property assessed to enjoin collection of the tax. City of St. Louis v. Ranken, 9 S. W. Rep. 910, 96 Mo. 497, and City of St. Louis v. Brewing Co., 10 S. W. Rep. 477, 96 Mo. 677, followed.
2. An averment in a petition for an injunction by the various owners of the property so assessed that "plaintiffs were not parties to the condemnation proceedings, had no notice thereof, and were therefore unable to prevent or protest against the wrongful acts committed in said proceedings," in the absence of any pleading of the ordinance regulating the giving of notice, does not show that the cause of action is the same as to all the plaintiffs, or show that the city failed to give the notice required by ordinance, and that the action is properly brought to avoid a multiplicity of suits.
In banc. Appeal from St. Louis circuit court.
Action by Martin Michael and others against the city of St. Louis. Judgment for defendant. Plaintiffs appeal. Affirmed.
The following is the opinion rendered in division No. 1 by BRACE, J.:
Cecil V. Scott, for appellants. Leverett Bell, for respondent.
On reargument in banc the conclusion reached in the foregoing opinion, heretofore handed down in division No. 1, that the judgment of the circuit court be affirmed, is concurred in by all the judges except SHERWOOD, C. J., who dissents; BARCLAY, J., and the writer concurring in this opinion, which is refiled, and the other judges in a separate concurring opinion by BLACK, J.
Mr. Pomeroy, in speaking of these suits by lot owners to be relieved from local assessments, and by taxpayers to be relieved from general assessments, says there is no pretense of any common property or other common right among the plaintiffs as individuals, or between them as a body, and the defendant. He then says: "The only community among them is in the question at issue to be decided by the court; in the mere external fact that all their remedial rights arose at the same time, from the same wrongful act, are of the same kind, involve similar questions of fact, and depend upon the same questions of law." 1 Pom. Eq. Jur. (2d Ed.) § 260. Such a community of interest in the questions to be decided is now generally held to be sufficient to call for the exercise of equitable jurisdiction to prevent a multiplicity of suits in this class of cases, and to this doctrine we agree. We then come to these questions: F...
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