Schmidt v. Pitluck

• Citation: 26 S.W.2d 859
• Decision Date: 07 April 1930
• Docket Number: No. 16877.,16877.
• Parties: SCHMIDT v. PITLUCK et al.
• Court: Court of Appeal of Missouri (US)

26 S.W.2d 859

SCHMIDT v. PITLUCK et al.

No. 16877.

Kansas City Court of Appeals. Missouri.

April 7, 1930.

Appeal from Circuit Court, Buchanan County; John D. McNeely, Judge.

"Not to be officially reported."

Action by O. H. Schmidt against Marcus Pitluck and others, to foreclose lien of special tax bills for paving. From a judgment for plaintiff, defendants appeal.

Affirmed.

C. W. Meyer, of Ft. Joseph, for appellants.

John C. Landis, Jr., and John C. Landis, III, both of St. Joseph, for respondent.

BARNETT, C.

This is an action to foreclose the lien of five special tax bills for paving, which were issued by the city of St. Joseph, a city of the first class. The petition is in five counts, each of which declares upon one of the tax bills and prays judgment for the amount of the bill and interest, and that the same be declared a lien upon lot 2, block 3 of Halsey's addition, an addition to the city of St. Joseph, that the lien be foreclosed, and that plaintiff have special execution therefor. The answer is a general denial, together with allegations that the contract for the paving had not been complied with, and a prayer that defendants be discharged with their costs. The reply is a general denial. The defendants introduced evidence to the effect that rock was used in eighty-one feet of the paving that did not come up to the requirements of the specifications for the paving, that the subgrade was not rolled with a roller as required, and that the concrete when laid was of a thickness of four and one-half to five and one-fourth inches, whereas the specifications provided that the concrete should be six inches thick. The plaintiff introduced the tax bills, together with evidence contradicting defendants' claim that a certain pile of rock had been used in laying eighty-one feet of the pavement. There was testimony that the rock in the pavement was the kind required by the specifications, that a roller had been procured from the city, and that the subgrade was rolled, and that the concrete had been laid six inches thick as required. The abstract of the cross-examination of W. C. Taylor contains the following:

"Mr. John Landis, Jr: We desire to introduce in evidence `plaintiff's exhibit 6.'

"Mr. Meyer: It is objected to as not being competent in this case. It is in the nature of hearsay.

"The Court: Has it been identified?

"Mr. John Landis, Jr: Yes. It is identified as the original receipt given to him when he paid it.

"The Court: Considered in evidence.

"To which action and ruling of the court, plaintiff then and there duly excepted and still excepts. (Clerk will here please copy `plaintiff's exhibit 6.'")

In the abstract of the examination of Oscar H. Schmidt, the following appears:

"Q. I hand you a paper writing marked by the reporter `plaintiff's exhibit 6,' and I will ask you what that is. A. It is a receipt from the city of St. Joseph for the use of the roller on Halsey street. The date of the receipt is 10-18-25.

"Q. You may state whether or not that roller was furnished to you by the city of St. Joseph for the purpose of rolling Halsey Street. A. It was.

"Mr. Meyer: We object to that `for the purpose' it was furnished.

"The Court: Sustained.

"Q. You may state whether or not you obtained this roller from the city for the purpose of using it to roll Halsey Street.

"Mr. Meyer: We object to that.

"The Court: Sustained. The question is what he did with it and not what his intentions were.

"Mr. John Landis, Jr: I want to show what he got it for and then I will show he did so use it.

"The Court: His intentions are immaterial unless it is done.

"Q. Did you use this city roller for the purpose of having Halsey Street rolled? A. Yes, sir."

J. H. Lyon swore that he had never seen any roller at the scene of the improvement. He was then asked if the subgrade ever had the appearance of having been rolled. The court sustained an objection to this question, remarking "that is a conclusion." This witness was also asked to describe the looks of the rock which he claimed had been used in laying eighty-one feet of the pavement. He answered: "It looked to me like rock I had seen coming out of the crusher that never went over a screen." The answer was stricken out upon the ground that it was a conclusion.

The case was tried without a jury. No declarations of law were asked or given, and the court was not asked in writing to state its conclusions of fact separately from conclusions of law. There was a judgment for plaintiff, motion for new trial was overruled, and defendants have appealed.

Opinion.

Appellants have made four assignments of error. They are as follows:

"I. The trial court erred in finding for the plaintiff instead of for the defendants.

"II. The trial court erred in admitting in evidence the purported receipt to the City of St. Joseph said to have been given by plaintiff for the roller to roll the sub-grade.

"III. The trial court erred in excluding evidence of the defendants to the effect that the sub-grade never had the appearance of having been rolled and that the rock looked like it had never been screened.

"IV. The trial court erred in not finding that there was no substantial compliance with the contract."

The first and fourth assignments raise the question as to whether there is any evidence to support the judgment. The briefs seem to erroneously assume that this is a suit in equity. A suit to enforce a statutory lien is an action at law except in those cases where the statute provides no method for the enforcement of the lien, or where the statutory method for enforcement is inadequate on account of the special circumstances of the case. Kansas City et al. v. Field, 285 Mo. 253, 226 S. W. 27; State ex rel. v. St. Louis & S. F. R. Co. (Mo. Sup.) 10 S.W.(2d) 918; Bates v. Comstock Realty Co., 306 Mo. 312, 267 S. W. 641; Schwab v. City of St. Louis, 310 Mo. 116, loc. cit. 135, 274 S. W. 1058; Western Brass Mfg. Co. v. Boyce, 74 Mo. App. 343; Varney v. Jackson, 66 Mo. App. 348, loc. cit. 351.

The case of City Trust Co. v. Cunningham (Mo. App.) 20 S.W.(2d) 930, is not in conflict with this rule. It was a suit to foreclose special tax bills; but, in that case, the defendant filed an answer in which affirmative relief was asked, and the court held that the case was thereby converted into a suit in equity. This presupposes that the action was at law before the answer was filed. The mere fact that the parties tried the case without a jury does not prove that it was tried on the theory that it was a suit in equity. Our practice permits actions at law to be tried without a jury, and there is nothing about such procedure which is inconsistent with the theory that the suit is an action at law. It therefore follows that if there is any substantial evidence to support the judgment of the trial court upon any theory the judgment may not be disturbed. An inspection of the statement of facts herein instantly discloses that there is sufficient evidence to support the judgment.

We agree that a receipt which was given to the city of St. Joseph and which plaintiff said was given for the use of a roller was not competent evidence that the contractor rolled the subgrade of the street. However, the receipt is not set forth in the abstract of record. The appellant should...