Risley v. City of St. Louis

• Decision Date: 31 March 1864
• Citation: 34 Mo. 404
• Parties: WILLIAM RISLEY, Respondent, v. THE CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Supreme Court

34 Mo. 404

WILLIAM RISLEY, Respondent,

v.THE CITY OF ST. LOUIS et al., Appellants.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Land Court.

The plaintiff filed his petition as follows: The plaintiff in the above entitled cause states, that he is the owner and he is now in possession of the following described real estate, situate in the city and county of St. Louis, to wit: A lot of ground, one hundred and forty feet on Risley street by eighty-five feet in depth, bounded north by Lombard street, east by self et al., south by Vorester, and west by Risley, in the city and county of St. Louis, State of Missouri, in block number forty-four; also a lot of ground, one hundred and sixty-three feet nine inches on Front street by one hundred and thirty-one feet six inches in depth, bounded north by Lombard street, east by Front street, south by Schoenthaler, and west by Commercial street, in the city and county of St. Louis, State of Missouri, in block number eight hundred and fifty-six; also a lot of ground, one hundred and thirty-seven feet four inches on Front street by one hundred and forty feet in depth, bounded north by Lombard street, east by Commercial street, south by Wade, and west by First street, in the city and county of St. Louis, State of Missouri, in block number eight hundred and fifty-six; and also a lot of ground, seventy-six feet four inches on First street by one hundred and eight feet in depth, bounded north by Lombard street, east by First street, south by Welmer, and west by self, in the city and county of St. Louis, State of Missouri, in block number forty-four.

The plaintiff further states, that on or about the seventh day of April, in the year eighteen hundred and fifty-eight, the mayor of the City of St. Louis, acting under the authority and by the direction of said city, rendered and entered up four several judgments against this plaintiff, for the sum of ____ dollars for damages, and also for costs, as is stated in said judgments, which judgments for damages and costs aforesaid the said city caused to be entered of record in the office of the register of the City of St. Louis aforesaid, a copy of which judgments is filed herewith, marked exhibit A.

The plaintiff further states, that afterwards, and on or about the 29th day of July, in the year eighteen hundred and fifty-nine, the said city caused an execution to be issued on said judgment, describing therein the above-mentioned real estate, and caused said execution to be delivered to the defendant, Daniel A. Rawlings, who was then and is now acting as marshal of the City of St. Louis, and directed said marshal to levy said execution upon said real estate, and to expose the same to public sale under said judgment and execution, a copy of which execution is filed herewith and marked exhibit B.

The plaintiff further states, that the said marshal, after said execution was delivered to him as aforesaid, and in pursuance of the said instructions of the said city, actually levied said execution upon said real estate, and said marshal has advertised said real estate in the Missouri Democrat and in the Anzeiger des Westens, two public newspapers, printed and published in said city; and said marshal threatens that he will, as stated in said advertisement, expose said real estate for sale, at public vendue or outcry, at the courthouse, in the city of St. Louis and county of St. Louis, on the _____ day of September, 1859, to the highest and best bidder, for cash, a copy of which advertisement is filed herewith, marked exhibit C.

The plaintiff further states, that he was not served with any judicial process or notice of the proceedings, if any there were, which preceded the rendering of said judgment; nor was this plaintiff a party in any way to any proceeding, judicial or otherwise, preliminary to or preceding said judgment; nor had this plaintiff any notice or knowledge of the rendering of said judgment until long after the same had been rendered and entered of record, as aforesaid.

The plaintiff further states, that said judgment was rendered and entered of record, and said execution issued thereunder, without any right or authority of law, and the plaintiff has never consented thereto; but, on the contrary, he has at all times, since his knowledge of them, protested against such judgment and execution.

The plaintiff further states, that he has been informed, and believes his information true, that the City of St. Louis, in the month of April, 1857, passed an ordinance, No. 3861, entitled “An ordinance to open and establish Chouteau avenue from Fifth street to the Mississippi river,” and afterwards such proceedings were had before the mayor of said city that a jury was empannelled to assess the damages and benefits in respect to the opening and establishing of said avenue, and afterwards, as the plaintiff has been informed and believes, such other and further proceedings were had by the said City of St. Louis, before the mayor thereof, that on or about the fourteenth day of September, A. D. 1857, said jury rendered their verdict and delivered the same to said mayor, and said jury was then discharged.

All which proceedings and ordinances, in respect to the opening and extending of said avenue, the said city claimed and assumed the right to originate and prosecute in manner aforesaid, in virtue of an act of the General Assembly of the State of Missouri, entitled “An act to amend an act entitled an act to reduce the law incorporating the City of St. Louis, and the several acts amendatory thereof, into one act, and to amend the same, approved March 3, 1841; approved February 23, 1853.”

The plaintiff further states, that after the rendering and delivering of said verdict as aforesaid, and after said jury was discharged as aforesaid, no other or further steps were taken by said city touching said verdict until on or about the seventh day of April, 1858, when the said mayor of said city rendered and entered up a judgment upon said verdict against the plaintiff for the sum of ____ dollars, and for costs, which is the same judgment hereinbefore mentioned, and under which the execution now in the hands of the said marshal was issued, as before stated.

The plaintiff further states, that more than six months elapsed from the time said verdict of said jury was rendered, as aforesaid, before the said mayor entered up said judgment as aforesaid; that there was no continuance or adjournment of said proceedings before said mayor, from day to day, or otherwise, from the time of rendering said verdict to the day said judgment was entered of record, nor was there any continuance or adjournment of said proceedings from any prior day to the day on which said judgment was entered of record as aforesaid; but contrariwise, instead of adjourning or postponing said proceedings from the day on which said verdict was rendered to a subsequent day, for further proceedings in respect to said verdict, and the opening and extending said avenue, the said mayor and the said city, after receiving said verdict, and after discharging said jury, as aforesaid, suffered and allowed said proceedings to stand over, and be adjourned sine die. All of which was done and suffered by said city without the knowledge or consent of the plaintiff; wherefore, by reason of the said laches and omissions of said city and its officers and agents aforesaid, said proceedings, touching the said verdict and the opening and extending of said avenue, were discontinued and became of no effect.

The plaintiff further states, that after said judgment was entered of record as aforesaid, and before the said execution was issued, the said act of the General Assembly of Missouri, before mentioned, was repealed by a subsequent act of said General Assembly, entitled “An act amendatory of and supplementary to the several acts incorporating the City of St. Louis, approved March 14, 1859.”

The plaintiff further states, that he does not owe the said city the amount of said judgment, nor any part thereof, nor is he in any way liable or bound for the costs specified in said execution; and that the rendering of said judgment and issuing of said execution are unlawful, and contrary to equity and good conscience.

The plaintiff further states, that the rendering of said judgment and the sale of the above mentioned real estate, if not restrained by this court, will cast a cloud upon the title of the plaintiff to said land, and will tend greatly to depreciate the value of said real estate, and greatly harass and embarrass the plaintiff in the enjoyment of his said property, and prevent him from making an advantageous sale or other disposition thereof; therefore, in consideration of the premises, the plaintiff asks that a restraining order or injunction may be granted herein, restraining and enjoining the defendants and their agents and servants from selling said real estate, and from further proceedings under said execution, until the further order of this court; and that upon a hearing and trial herein, the defendants may be perpetually enjoined and restrained from all further proceedings under said execution in respect to said real estate, and that this court will grant such other and further relief in the premises as to this court may seem meet and equitable.

The court found the facts as follows:

The court finds that the plaintiff, at the time of filing his petition, was the owner and in possession of the land and premises described in his petition; that the mayor of the City of St. Louis, acting under the authority and by direction of said city, rendered and entered up the judgment mentioned in the plaintiff's petition; that said city caused an execution to be issued on said judgment, describing said real estate in said execution as stated in plaintiff's petition, which execution said city caused to be placed in the hands of Daniel A. Rawlings, who was then marshal of said city, with directions from said...