Powell v. City of Creve Coeur

• Decision Date: 24 February 1970
• Docket Number: No. 33583,33583
• Citation: Powell v. City of Creve Coeur, 452 S.W.2d 258 (Mo. App. 1970)
• Parties: Roy POWELL, Plaintiff-Appellant, v. CITY OF CREVE COEUR and Marshall Arky, Defendants-Respondents, Louis Prelutsky and Helen Moritz, Defendants.
• Court: Missouri Court of Appeals

Page 258

452 S.W.2d 258

Roy POWELL, Plaintiff-Appellant, v. CITY OF CREVE COEUR and Marshall Arky, Defendants-Respondents Louis Prelutsky and Helen Moritz, Defendants.

No. 33583.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1970.

Edwin Rader, Chester A. Love, Clayton, for plaintiff-appellant.

Louis Gilden, St. Louis, Kroening & Kelly, Gordon F. Webb, Clayton, for defendants-respondents.

DOERNER, Commissioner.

The Circuit Court of St. Louis County, Missouri, sustained the motion of defendants-respondents City of Creve Coeur and Marshall Arky for a summary judgment, and appellant Roy Powell appealed to the Supreme Court. That court determined that it lacked jurisdiction to entertain the appeal and transferred it to this court. 441 S.W.2d 693.

Basically, the narrow and decisive issue presented by this appeal is the propriety of the court's action in rendering summary judgment in favor of respondents. Accordingly, contrary to respondents' contention, no motion for a new trial by appellant was required for appellate review. Russell v. Russell, Mo., 427 S.W.2d 471; Koviak v. Union Electric Company, Mo., 442 S.W.2d 934.

While the question to be determined is a relatively simple one, the long and tortuous course traveled by the case to reach this court necessitates a somewhat lengthy and involved statement of the pertinent facts. Appellant instituted two actions by separate petitions, each of which was titled, 'Petition in Equity to Enforce Redemption of Real Property.' In the first appellant alleged that he was the owner in fee simple of 47 lots situated in a subdivision known as Malcolm Terrace, located in the City of Creve Coeur, the record title to certain specified lots having been recorded in the name of Estellen Goetz and Valeria Mason, both of whom were straw parties for him; that the City of Creve Coeur, a city of the fourth class, acting under the governing provisions of Chapter 140, RSMo 1959, V.A.M.S., sold all of the 47 described lots at a tax sale, not a third sale as provided in that Chapter; that at that sale, held on August 28, 1961, the defendants City of Creve Coeur, Louis Prelutsky and Marshall Arky each purchased certain of said lots and were given certificates of purchase therefor; that under the provisions of Section 140.340 the appellant was entitled to redeem the described lots within a two year period following the tax sale by paying to the Collector of said City the purchase money named in the certificates of purchase given to the purchasers, together with the cost of said sale, all subsequent taxes, if any, paid by said purchasers, and statutory interest and costs incidental to said redemption; that although the appellant requested the Collector and other officials of the City of Creve Coeur to advise him of the statutory amount necessary for appellant to pay so that he might redeem said lots, said Collector and other officials had failed and refused so to do and by reason thereof it was impossible for the appellant to deposit with the Collector the sum required by the statute within the statutory period to accomplish the redemption.

Appellant's second petition was similar to the first except that it pertained to 10 other lots in the same subdivision, certain of which had been bought in at the tax sale by defendant Helen Moritz as well as others by defendants City of Creve Coeur, Louis Prelutsky and Marshall Arky.

The defendant Louis Prelutsky, named in both petitions, and the defendant Helen Moritz, named only in the second, filed their respective answers. Respondent Arky filed an answer to both petitions and respondent City of Creve Coeur to only the second. The respondents also filed a joint motion for summary judgment in each case, which were taken as submitted on March 5, 1965, on which day the trial court consolidated the two causes on its own motion. On March 10, 1965, the court entered the summary judgment in favor of respondents City of Creve Coeur and Marshall Arky. Appellant thereupon appealed to the Supreme Court from the summary judgment, but that appeal was dismissed by the Supreme Court as premature because the judgment had not disposed of defendants Prelutsky and Moritz. Following receipt of the mandate, a trial was had as to those two defendants, resulting in a decree in favor of plaintiff, from which no appeal was taken by defendant Prelutsky or by defendant Moritz. Appellant, however, filed a new notice of appeal as to the summary judgment granted respondents City of Creve Coeur and Marshall Arky, the propriety of which action, as stated, is now before us.

Despite the title of appellant's petitions, neither stated a cause of action to enforce the redemption of the lots which appellant alleged he had owned. What was stated was pointed out by the Supreme Court in its opinion holding that it was without jurisdiction to entertain this appeal (loc. cit. 441 S.W.2d 694):

'Reference to Appellant's petition and in particular to the prayer for relief it contains reveals a rather odd mixture of an action for declaratory judgment, that is, that the Court decree that plaintiff is entitled to redeem real property, and an action in the nature of mandamus, that is, that the Court decree, 'that defendant, City of Creve Coeur furnish the Court for the benefit of the plaintiff the itemized statutory sum of money necessary for plaintiff to pay to accomplish said redemption * * *'.'

Thus, in effect, we have two, not one, causes of action to consider.

As pointed out by the Supreme Court in the passage quoted, what the appellant first sought was a decree declaring that he was entitled to redeem the lots in question. Whether respondents were entitled to a summary judgment on that cause of action must be determined in the light of the statutes and of the record as it stood at the time the summary judgment was granted. The first paragraph of § 140.340, RSMo 1959, V.A.M.S., provides that the owner, occupant, '* * * or any other persons having an interest therein, * * *' of any lots sold for taxes may redeem the same at any time within two years from the date of sale by paying to the Collector the full sum paid by the purchaser at the tax sale, together with interest thereon and certain other specified items. Thus, the first prerequisite to establishing a right to redeem is that of ownership of the lots sold for taxes. While the respondents, City and Arky, formally denied appellant's claim to ownership by their answers, they did not contradict appellant's claim on that score in the affidavits they filed in support of their motion for a summary judgment, and in his deposition, taken and filed by the respondents, appellant amply satisfied that prerequisite to his right to redeem.

The real thrust of respondents' argument that appellant was not entitled to redeem, and that they were therefore entitled to summary judgment, is that within two years from the date of the tax sale appellant failed to pay, or to offer to pay, the amount required under the statute to be paid to entitle him to redeem. In support of their motion respondents filed the affidavits of Lester E. Hackmann, the City Collector; Bernice Schroeder, who described herself as '* * * a secretary and chief office clerk for the City of Creve Coeur'; and respondent Arky. The gist of all of such affidavits is that appellant never paid or tendered payment of the amount necessary to be paid to effect redemption. Respondent took the deposition of appellant, which was on file at the time the trial court granted summary judgment. On his behalf appellant filed an opposing affidavit, in which, as well as in his deposition, appellant conceded that he had not made any actual payment necessary to effect a redemption. However, in his affidavit he detailed his repeated visits to the City Hall, over a period of months, where he requested information (principally from Bernice Schroeder) as to the amount necessary for him to pay to effect the redemption of his property, and the excuses given him for failing to furnish the information he sought. In his deposition appellant reiterated his sworn statements as to his unavailing efforts and testified that he had advised Bernice Schroeder that he wanted to redeem all of the lots that had been sold for taxes, and that she had described the Collector as her boss. It was...