Schreck v. Parker

• Decision Date: 17 March 1965
• Docket Number: Nos. 8324-8329,s. 8324-8329
• Citation: Schreck v. Parker, 388 S.W.2d 538 (Mo. App. 1965)
• Parties: Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. William Frank PARKER, Ruby Marlene Parker, Mercantile Mortgage Company, a corporation, and Roger A. Bailey, Trustee, Defendants-Appellants. Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Joe PENERMAN and Mamie Penerman, Defendants-Appellants. Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Walter C. KLEIN and Olga H. Klein, Defendants-Appellants. Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Jimmy PEQUES and Bevador S. Peques, Defendants-Appellants. Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Willie Myrtle GOOCH, Bank of Sikeston, a corporation, R. A. Bailey, Trustee, and W. S. Corrigan, Trustee, Defendants-Appellants. Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. W. O. CHAPPEL, Beulah Mae Chappel, C. E. Stauffer, and Marshall Craig, Trustee, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 538

388 S.W.2d 538

Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. William Frank PARKER, Ruby Marlene Parker, Mercantile

Mortgage Company, a corporation, and Roger A.

Bailey, Trustee, Defendants-Appellants.

Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Joe PENERMAN and Mamie Penerman, Defendants-Appellants.

Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Walter C. KLEIN and Olga H. Klein, Defendants-Appellants.

Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Jimmy PEQUES and Bevador S. Peques, Defendants-Appellants.

Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Willie Myrtle GOOCH, Bank of Sikeston, a corporation, R. A.

Bailey, Trustee, and W. S. Corrigan, Trustee,

Defendants-Appellants.

Jean SCHRECK, Adm'x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. W. O. CHAPPEL, Beulah Mae Chappel, C. E. Stauffer, and Marshall Craig, Trustee, Defendants-Appellants.

Nos. 8324-8329.

Springfield Court of Appeals, Missouri.

March 17, 1965.

Roger A. Bailey, Sikeston, Thomas L. Arnold, Benton, for defendants-appellants.

W. Clifton Banta, Charleston, for plaintiff-respondent.

STONE, Judge.

This opinion deals with the appeals by defendants (property owners) in six cases (here consolidated) instituted by the same plaintiff, Joe W. Scales, as the assignee of tax bills, to enforce the lien thereof against lots in Sikeston, Missouri, a city of the third class. The improvement, for which the City of Sikeston (hereinafter referred to as the city) issued these (and a multitude of similar) tax bills, was the grading, rolling and oiling of streets under Section 88.643, RSMo 1949 [repealed and substantially reenacted Laws of 1953, p. 312; amended Laws of 1959, H.B. No. 280, and renumbered as Sec. 88.811, RSMo 1959, V.A.M.S.].

By four ordinances enacted by the city council on April 24, 1950, the city created four districts numbered 1 to 4, inclusive, each of said districts 'being comprised of all of the unpaved streets within the boundaries' of the ward identified by the same number, and directed the city engineer to prepare plans, specifications and estimates of cost for 'grading and oiling' designated streets. By four ordinances enacted on April 28, 1950, the city approved and adopted plans and specifications for 'the improving by grading, rolling and oiling' of the designated streets in each district, authorized and directed the mayor and city clerk to enter into written contracts with National Road Builders, Inc. (hereinafter referred to as the contractor), authorized the mayor 'to serve as supervising agent in charge of said improvement work,' and provided for payment by issuance of special tax bills against abutting property on the basis of sixteen cents per linear foot.

The plans and specifications, identical as to all districts except in one minor particular hereinafter noted, are summarized as follows: (1) 'Streets in this program shall first be graded to the satisfaction of the city representative and then rolled with an eight ton roller to the satisfaction of said city representative.' (2) One of three designated 'types of liquid asphalt,' to wit, SC-1, MC-0 or A.E.S. 1, 'as desired by the city representative' was to be applied. (3) The contractor was to use a distributor with a 20-foot spray bar, equipped with a fifth-wheel tachometer, and asphalt was to be laid at a temperature of approximately 120~F. by a pump 'capable of * * * pressure from 20 to 50 pounds.' (4) The application of asphalt was to be for a width of 21 feet and at the rate of 0.4 to 0.7 gallon per square yard (except in District No. 4, where the rate was to be 0.4 to 0.8 gallon per square yard), depending upon the nature and condition of soil being dust coated. (5) All street and alley intersections were to be dust coated at no additional cost. (6) The contractor was to 'protect work from traffic until ready for use' and to furnish a construction bond in the penal sum of $10,000.

Under date of May 16, 1950, the city and the contractor executed four written contracts (a separate one for the work to be done in each district) by which the contractor agreed 'to grade, roll and oil the roadway' of designated streets in accordance with the plans and specifications approved and adopted by the city council. Pursuant to ordinances subsequently enacted, the city council accepted the work and, in payment therefor, tax bills (including those in suit) were issued in the name of the city and thereafter assigned to the contractor.

After the timely filing of the instant cases in June 1955, they remained pending on defendants' motions until March 10, 1960, when those motions were overruled. In the meantime, to wit, during January 1960, the death of plaintiff Scales had been suggested to the court and, upon motion, Jean Schreck, administratrix of Scales' estate, had been substituted as party plaintiff. V.A.M.R. Rule 52.12(a). On May 9, 1960, defendants filed their answers in which they alleged that the tax bills in suit were void because (a) the city council 'was not regularly in session when the three ordinances upon which [the tax bills were] based were passed,' (b) 'the tax bill ordinance was based upon a fictitious approval of the work,' (c) 'the contractor did not do the work as required by the contract[s] and specifications,' and (d) the tax bills were 'fraudulently procured.' On July 14, 1961, the regular judge disqualified on his own motion and a special judge was appointed.

On August 11, 1961, defendants filed their motions to dismiss 'for failure to prosecute to a conclusion within a reasonable time.' The motions pleaded no fact other than that the cases had been 'on the docket for more than five years.' No hearing was had, and no evidence was offered, on the motions; and on December 19, 1962, they were overruled. One of the points here urged is that the trial judge erred in denial of these motions to dismiss. Of course, a trial court has the inherent power to dismiss for failure to prosecute with due diligence. ¹ However, whether any given case should be dismissed for want of prosecution does not depend solely upon the length of time during which the case has been pending [17 Am.Jur., Dismissal, etc., Sec. 77, l.c. 152] but must be determined, in the exercise of a sound judicial discretion, upon all of the facts and circumstances of that particular action. Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 618(12); 27 C.J.S. Dismissal & Nonsuit Sec. 65(2), l.c. 435, 437. With the presumption always being that the decision of the trial court was correct and the burden always resting upon appellants to make an affirmative showing of error as a condition precedent to reversal, ² and with no evidence whatever as to who was responsible for, or as to what caused, the delay in the instant cases, we may not convict the trial court of error in overruling motions to dismiss for failure to prosecute. ³

On July 17, 1963, the cases were tried and taken under advisement; and, on December 26, 1963, the court in each case made a general finding for plaintiff and then entered judgment that the principal of and interest on the tax bill in suit and the court costs were 'to be levied on and made out of the property charged with the lien of said special tax bill' and specifically described in the judgment. Defendants-appellants here complain that the trial court 'erred in granting a judgment in personam against the defendants in each case.' True, judgments in suits for the collection of local assessments and special benefits are judgments in rem, not in personam, and can be only for the enforcing of a lien against the particular property assessed. Schwab v. City of St. Louis, 310 Mo. 116, 142, 274 S.W. 1058, 1066(12); City of St. Louis to Use of Bruennell v. Bressler, 56 Mo. 350, 351(2). But, on this point, counsel for instant plaintiff replies that the judgments under scrutiny are judgments in rem which 'may be satisfied only out of the property charged with the lien'; and, without burdening this opinion by including one of the judgments in haec verba, suffice it to say that we are of the same mind as to the import, meaning and effect of these judgments. Robinson v. Levy, 217 Mo. 498, 520-521, 117 S.W. 577, 584(10). Another of defendants' points is that 'the ordinances authorizing the contracts for the work to be done and the issuance of tax bills therefor were not passed at a regular meeting, a special meeting, or at a regularly adjourned meeting of the city council and therefore were void.' One of defendants' attorneys vigorously pressed the same point on precisely the same evidence in a previous suit upon another tax bill issued pursuant to the same ordinances; and we there carefully considered, exhaustively discussed, and plainly ruled this point adversely to the defendants in that case. Scales v. Butler, Mo.App., 323 S.W.2d 25, 27-29. No effort now is made to demonstrate error in that holding. Rather, it simply is ignored. In these circumstances, the same point neither requires nor deserves repetition and reiteration of what we previously recorded as to the relevant facts and wrote as to the applicable law.

All of the other points (five in number) in defendants' brief are directed to a single issue, namely, whether the contractor substantially performed the work in accordance with the plans and specifications adopted by the city council and by reference embodied in the written contracts between the city and the contractor. If there was such substantial performance, the tax bills issued in payment for the work are valid. ⁴ If there was a failure of substantial performance, the tax bills are invalid. ⁵ In this inquiry, we must remain mindful that deviations from the plans and specifications justify and permit a finding...