Ross v. Gates

• Decision Date: 05 February 1906
• Citation: 93 S.W. 856,117 Mo. App. 237
• Parties: ROSS v. GATES et al.
• Court: Missouri Court of Appeals

93 S.W. 856

117 Mo. App. 237

ROSS v. GATES et al.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS—TAX BILLS—LIENS.

The liens of separate tax bills issued against separate tracts of land for the improvement of a street in front thereof are separate and distinct, and one of them may be released without affecting the others.

2. SAME—DISCHARGE OF TAX BILL LIEN.

Tax bills were issued against land for a street improvement. Subsequently the city condemned the land for a public purpose, and in obedience to the order of the court paid into court a part of the damages assessed in favor of the landowner for the purpose of paying the tax bills. All the parties interested accepted as sufficient for such purpose the sum deposited. Held, that the land described in the bills was thereby released from the lien, and the holder of the bills was entitled to proceed only against the fund, though on account of accumulations of interest the amount due exceeded the deposit.

3. SAME — ENFORCEMENT OF TAX BILLS — TIME TO SUE—NOTICE OF SUIT—NECESSITY.

Kansas City Charter, art. 9, § 23, providing that the lien of tax bills shall continue only for one year after the maturity of the last installment, unless within the year suit shall have been instituted to collect the same and notice of the suit shall have been filed with the city treasurer, requires the bringing of a suit within one year after the maturity of the last installment in order to preserve the lien, and the provision with respect to the filing of the notice has no application in a suit by the holder of a tax bill against the owner of the land to enforce the lien thereof, the intention being that the notice shall operate as a lis pendens for the benefit of third persons.

4. SAME—CONTRACTS FOR PUBLIC IMPROVEMENT — BIDS — NOTICE — PUBLICATION — PROOF—SUFFICIENCY.

A municipal ordinance required the publication in a newspaper for 10 successive days within 20 days next preceding the time for opening bids for a public work, of a notice of the letting of the contract for the work to the lowest bidder. Held, that on the issue of the due publication of the notice, the tax bills issued for the payment of the work and the affidavit of the publisher averring the due publication of the notice established a prima facie case of due publication, casting on the party asserting the contrary the burden of proving it.

5. SAME—CONTRADICTORY EVIDENCE—INSUFFICIENCY.

The party asserting that the notice had not been duly published introduced in evidence a copy of the newspaper purporting to have been published on one of the days specified in the publisher's affidavit. But he did not show where or how he procured the paper, nor that it was a copy of the regular edition of that day. Held insufficient to overcome the prima facie proof of due publication.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Michael Ross against Jemuel C. Gates and others. From a judgment for plaintiff, defendants appeal. Modified.

Henry N. Ess, for appellants. Cowherd & Ingraham and Amos H. Kagy, for respondent.

JOHNSON, J.

This is an action to enforce the collection of six special tax bills issued against land owned by the defendants on account of the improvement of the street in front thereof. The bills were issued against separate parcels of the land. All bore the same date, December 15, 1896; belonged to the same series, and were issued in payment of the cost of paving Fifteenth street in Kansas City between Virginia and Woodland avenues. Each bill was for the sum of $735.94, payable in four equal installments of $183.98½ each, the last one of which matured May 31, 1900. The bills in issue here were numbered 61 to 66 inclusive, and bore interest at the rate of 7 per cent. per annum until maturity, after which the rate was fixed at 10 per cent. The ordinance, under which the work was done, was passed Oct. 15, 1895. The petition in this suit, which was filed on May 28, 1901, is in 24 counts, each of the four installments in each bill being separately pleaded as a cause of action. On June 10, 1904, plaintiff recovered a special judgment upon each of the six bills in the sum of $1,307.72, the amount then due. The judgment foreclosed the lien of each bill upon the parcel of land therein described, and concluded by ordering and adjudging "that plaintiff have and recover * * * the aggregate sum of $7,846.32, with interest thereon from this date at the rate of 10 per cent. per annum, * * * to be levied and collected out of the real estate above described, and have special execution therefor." On December 23, 1904, during the pendency of the motion for a new trial filed by defendants, plaintiff entered a remittitur of $3,614.05 and credited that sum upon the aggregate judgment. The motion was then overruled, and defendants appealed.

The sum remitted, $3,614.05, was the proceeds derived by plaintiff from another suit brought by him upon the bills numbered 61, 62, and 63, all of which are involved in the controversy before us. As that proceeding bears importantly upon the merits of the one in hand, a knowledge of its history is essential to a proper understanding of the present case. On November 13, 1895, the city, acting under article seven of its charter, passed an ordinance to open and establish a public park to be known as "The Parade" and, on July 1, 1896, began condemnation proceedings in the circuit court of Jackson county under said ordinance. The parcels of land owned by defendants, and described in tax bills 61, 62, and 63, were affected by that proceeding, but not those described in bills 64, 65, and 66. On January 23, 1899, the jury assessed the damages of defendants, on account of the appropriation of their said land, in the sum of $142,500 and, on January 13, 1900, the court confirmed the verdict, but ordered that of the damages assessed the city should pay into court the sum of $3,634.51 to be held as a fund out of which to pay valid special taxes against the land. All of the parties interested, plaintiff, defendants, and the city, acquiesced in this judgment and no appeal was prosecuted from it. On December 28, 1900, plaintiff brought suit in the circuit court of Jackson county against the defendants here and the city, the real object and purpose of which was to secure a judgment for the payment of bills 61, 62, and 63 out of the fund reserved. Defendants answered attacking the validity of the bills and, with three exceptions, raised every point against them that is now being urged. The trial court, however, sustained the legality of the bills and ordered the amount then due upon them, $3,265.44, paid out of the fund. From this judgment, defendants prosecuted an appeal to the Supreme Court and, on July 1, 1904, that court affirmed the judgment. Ross v. Gates, 183 Mo., 338, 81 S. W. 1107. When the judgment of $7,846.32 was entered in the present suit on June 10, 1904, one-half thereof, $3,923.16, represented the aggregate sum of the recovery upon the three bills involved in the other suit, and when credit was given upon the entire judgment on December 23, 1904, for the sum of $3,614.05, it left the sum of $309.11 unpaid on said tax bills, together with interest at the rate of 10 per cent. per annum on the sum of $3,923.16 from June 10 to December 23, 1904; so that, in the judgment before us, we find included the sum of $3,923.16, the total amount due on June 10, 1904, on tax bills 64, 65, and 66, and $309.11 then due on bills 61, 62, and 63; and, on the judgment as it now stands, plaintiff is permitted to receive interest at the rate of 10 per cent. per annum on the full sum of $7,846.32 from June 10 to December 23, 1904, and thereafter interest on the full amount of the judgment and interest then accrued, less the credit of...