Missouri Securities Corp. v. Morris Wentworth Bank

• Decision Date: 17 February 1930
• Citation: 24 S.W.2d 703,224 Mo.App. 952
• Parties: MISSOURI SECURITIES CORPORATION, PLAINTIFF IN ERROR, v. THE MORRIS WENTWORTH BANK, DEFENDANT IN ERROR
• Court: Kansas Court of Appeals

24 S.W.2d 703

224 Mo.App. 952

MISSOURI SECURITIES CORPORATION, PLAINTIFF IN ERROR, v. THE MORRIS WENTWORTH BANK, DEFENDANT IN ERROR

Court of Appeals of Missouri, Kansas City

February 17, 1930

Error to the Circuit Court of Jackson County.--Hon. A. Stanford Lyon, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Fyke & Hall for plaintiff in error.

Arthur N. Adams, Eaton Adams and Arthur N. Adams, Jr., for defendant in error.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is an action upon four tax bills issued by Kansas City. The suit was begun in the circuit court on April 10, 1918. On April 11th of that year summons was issued and delivered to the sheriff returnable to the May, 1918, term of the court. On May 13, 1918, the sheriff made a non est return upon said summons. No further proceedings were had in the cause until October 31, 1927, at which time the defendant appeared specially and filed a motion to dismiss the case which motion was sustained on November 18, 1927, and judgment dismissing the cause rendered against plaintiff. In due time plaintiff filed its motion to set aside said judgment and to grant it a new trial, which motion was, on December 13, 1927 overruled. Plaintiff appealed to this court but on October 2, 1928, it dismissed the appeal. On October 9, 1928, plaintiff sued out this writ of error.

In sustaining defendant's motion to dismiss, the trial court evidently relied upon the decision of this court in Weaver v. Woodling, 272 S.W. 373, holding that "process must be regularly continued from term to term, and if a hiatus is permitted to intervene between successive processes it will operate as a discontinuance." However, after the rendition of the judgment by the trial court the Supreme Court in the case of Ferber v. Brueckl, 17 S.W.2d 524, overruled the Weaver case and held that failure to have an alias issued at the return term, and succeeding pluries writs at every succeeding term until service, does not work a discontinuance of the suit.

Defendant does not attempt to sustain the action of the trial court, and of course, in view of the holding of the Supreme Court in the Ferber case, it cannot be upheld, but has filed here a motion to quash the writ of error. In support of this motion defendant claims that under the provisions of the Charter of Kansas City, in order to preserve the lien of the tax bills, it was necessary to institute suit upon them within two years from their date "and to continue the legal proceedings without interruption;" that the tax bills were issued on April 11, 1918; that the suing out of the writ of error was the commencement of a new suit; that such suit having been commenced on October 9, 1928, or more than two years after the issuance of the tax bills, this suit by writ of error is barred.

In this connection it is claimed:

"Plaintiff in error's lien on its tax bills and cause of action therefor were extinguished when it discontinued the suit filed on said tax bills by dismissing its appeal on October 2, 1928."

It is true that the suing out of a writ of error in this State is the commencement of a new suit and not a continuation of the suit below to which it relates. [Turner v Edmonston, 210 Mo. 411, 109 S.W. 33.] But the new suit is not the original cause of action but is a suit to annul and set aside the judgment of the court below. ...