Robinson v. Levy

• Decision Date: 09 March 1909
• Citation: Robinson v. Levy, 217 Mo. 498, 117 S.W. 577 (Mo. 1909)
• Parties: ROBINSON v. LEVY.
• Court: Missouri Supreme Court

117 S.W. 577

217 Mo. 498

ROBINSON v. LEVY.

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

1. COURTS (§ 472) — CONCURRENT JURISDICTION OF CIRCUIT AND JUSTICE COURTS—SPECIAL ASSESSMENT—ACTION TO ENFORCE.

Though a justice of the peace has jurisdiction where the sum demanded does not exceed $250 (Rev. St. 1889, § 1604), the circuit court has jurisdiction of an action to enforce collection of $71.32 as an assessment for street improvements, since Rev. St. 1889, § 1674 (Ann. St. 1906, p. 1217), gives that court and a justice of the peace concurrent jurisdiction, where the demand is more than $50 and less than the maximum jurisdiction of a justice.

2. MUNICIPAL CORPORATIONS (§ 570)—SPECIAL ASSESSMENTS — ACTION TO ENFORCE — JUDGMENT—COLLATERAL ATTACK.

A petition for the enforcement of a special municipal tax bill for a street improvement held sufficient to support the judgment so as to withstand a collateral attack.

3. PLEADING (§ 310)—EFFECT OF EXHIBITS.

An exhibit is no part of the petition though it is attached, and the petition states it is made a part thereof.

4. MUNICIPAL CORPORATIONS (§ 570) — SPECIAL ASSESSMENT — JUDGMENT—COLLATERAL ATTACK.

In an action to enforce a special assessment for street improvements, the failure of the mayor to sign and the clerk to attest the tax bills, the omission to file as an exhibit the original tax bills, or the fact that such tax bills were invalid or barred by limitations, are matters of defense, of which defendant cannot avail himself in a collateral attack on the judgment.

5. MUNICIPAL CORPORATIONS (§ 558) — ENFORCEMENT OF SPECIAL ASSESSMENTS—JURISDICTION.

Though the action provided by statute for the enforcement of a special assessment may be deemed statutory when the court obtains jurisdiction thereof, it does not proceed to judgment in the mere exercise of statutory powers, but it exercises its general jurisdiction.

6. COURTS (§ 1)—"JURISDICTION."

The word "jurisdiction" may be defined as "the right to adjudicate the subject-matter in a given case. To constitute this, there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and, third, the point decided must be in substance and effect within the issue."

7. MUNICIPAL CORPORATIONS (§ 570) — ENFORCEMENT OF SPECIAL ASSESSMENT—SUFFICIENCY OF PETITION.

The allegation, in a petition to enforce a special assessment for a street improvement, that "this plaintiff is the owner of such tax bill, and the same nor any part has been paid," sufficiently shows that the tax has not been paid to withstand a collateral attack on the judgment.

8. MUNICIPAL CORPORATIONS (§ 570) — ENFORCEMENT OF SPECIAL ASSESSMENT—COLLATERAL ATTACK.

Under Rev. St. 1899, § 672 (Ann. St. 1906, p. 686), providing that no judgment after trial or submission shall be reversed or in any way affected by certain omissions in pleadings, the failure of a petition for the enforcement of a special tax bill to allege nonpayment of such bill cannot be made the basis of a collateral attack on the judgment.

9. MUNICIPAL CORPORATIONS (§ 582)—SPECIAL ASSESSMENT—ENFORCEMENT—PUBLICATION OF NOTICE—RECITALS IN DEED.

A sheriff's deed on a sale on a judgment to enforce a special municipal assessment, reciting the publication of a proper notice of sale in a newspaper published in the city in which the land is situated, is sufficient, without stating whether the newspaper was a weekly or daily, or a weekly and daily.

10. MUNICIPAL CORPORATIONS (§ 570)—SPECIAL ASSESSMENT — ENFORCEMENT—NATURE OF JUDGMENT.

A judgment for the enforcement of a special municipal assessment is not personal against a landowner because it recites that "defendant is indebted to" the city in the sum sought to be enforced, where it directs the amount of the judgment to be levied on the property assessed, which is described.

11. HOMESTEAD (§ 105) — EXEMPTION FROM MUNICIPAL ASSESSMENT.

A homestead is not exempt from sale on a judgment enforcing a special municipal assessment for street improvements.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by R. B. Robinson against Max Levy. From a judgment for defendant, plaintiff appeals. Affirmed.

This appeal, on the part of the plaintiff, is from a judgment of the circuit court of Jackson county, Mo., at Kansas City, in favor of the defendant. This proceeding is predicated upon the provisions of section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), by which it is sought to have the court ascertain and determine the title, estate, and interest of plaintiff and defendants herein, respectively, in and to the following real estate: The east forty (40) feet of a tract of land, bounded as follows, to wit: On the north and west, by Westport avenue; on the south, by the south line of section 19, in township 49, range 33; on the east, by lot one (1) of Jones and Fisher's addition to the city of Westport, now being a part of Kansas City.

The answer interposed by the defendant to the petition was, first, a general denial of each and every allegation in said petition contained, except the allegation that defendant claims some title, estate, or interest in the real estate described in the petition. The defendant, further answering, specifically denies that plaintiff has any right, title, or interest in said land, or is in the possession of the same. Then follows in said answer the allegation that the defendant is, and for a long time past has been, the owner in fee of the real estate in controversy, and that he is now in possession of the same.

This cause was submitted to the court upon an agreed statement of facts. We do not deem it necessary to reproduce this statement, with all the details of the agreed statement of facts as disclosed by the record. A brief reference to the facts as applicable to this controversy will be sufficient to enable us to determine the legal propositions disclosed by the record.

It appears from the agreed statement of facts that in 1893 one Augustus Smith was the undisputed owner of and in possession of the land in question, and that in September, 1893, a suit was filed against said Augustus Smith to enforce against the land a lien for certain special tax bills issued by the city of Westport to pay the cost of paving Main street, upon which street the land in question abutted.

As the sufficiency of the petition in that case is challenged, it is well to reproduce it. It was as follows:

"Plaintiff, for cause of action, states: The city of Westport is a municipal corporation organized and existing under and by virtue of the laws of the state of Missouri, and is a city of the fourth class; that heretofore, and prior to the 17th day of June, 1891, the said city of Westport, for the purposes of improving Main street from South Main street to the southern city limits by paving the same in said city, by ordinance No. 143, entitled, `An ordinance to pave Main street from South Main street to the western limits of the city of Westport,' which ordinance was approved on the 17th day of June, 1891, and in pursuance to such ordinance, such improvement was made and said street was paved, and, when the work was completed, the cost thereof was apportioned among the several lots and parcels of land to be charged therewith, and each lot and parcel of property was charged with its proper share of such costs, according to the frontage of the property, and there was charged against the following described lot or parcel of land in the city of Westport, county of Jackson, state of Missouri, to wit: The east forty (40) feet of a tract of land bounded as follows: On the north and west by Westport avenue; on the south by the south line of section nineteen (19), township forty-nine (49), range thirty-three (33) west; on the east by lot one (1), Jones & Fisher's addition, in the city of Westport—the sum of fifty-one and 32/100 ($51.32) dollars, its proper share of such costs. That the said city of Westport, for the purpose of paying for such improvements, caused its certain tax bill to be issued against the above-described property for the said sum of fifty-one and 32/100 ($51.32) dollars, which bill was issued on the 6th day of May, 1892, which bill bears interest at the rate of ten per cent. per annum after thirty days from the date of issuance, and, if not paid in six months from date of issue, it shall bear interest at the rate of fifteen per cent. per annum until paid, a copy of which bill is hereto attached, and made a part of this petition. That this plaintiff, S. Howard McCutcheon, is the owner of such tax bill, and that the same, nor any part thereof, has been paid. That the above defendants have, or claim to have, some interest in the above-described property, and that there is due plaintiff from defendants the sum of fifty-one and 32/100 dollars, and interest thereon at the rate of ten per cent. per annum for the first six months from thirty (30) days after date of issuance as above stated, and fifteen per cent. per annum since such time for the improvements above set out. Wherefore, plaintiff asks judgment for the sum of fifty-one and 32/100 dollars, and interest thereon at ten per cent. per annum for six months from May 6, 1892, and at fifteen per cent. per annum since such time, and the costs herein expended, and that the same be declared a special lien upon the above-described property, to wit: The east forty (40) feet of a tract of land bounded as follows: On north and west by Westport avenue; on the south by south line of section nineteen (19), township forty-nine (49), range thirty-three (33) west; east by lot one (1), Jones & Fisher's addition, in the city of Westport.

"Plaintiff, for a second and additional cause of action, states that the city of Westport is a municipal corporation, organized and existing under and by virtue of the laws of the state of Missouri, and is a city of...