Smith v. Kiene

• Decision Date: 30 November 1910
• Citation: 132 S.W. 1052,231 Mo. 215
• Parties: SMITH v. KIENE et al.
• Court: Missouri Supreme Court

132 S.W. 1052

231 Mo. 215

SMITH v. KIENE et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

1. JUDGMENT (§ 273) — ENTRY NUNC PRO TUNC—NOTICE—NECESSITY.

Where the court, without notice to defendants, set aside the judgment rendered, and entered a new one nunc pro tunc, the latter was not void for want of notice, the defendants being, in contemplation of law, in court by virtue of the original service on them and of their pending motions for new trial and in arrest.

2. JUDGMENT (§ 273)—NUNC PRO TUNC—NOTICE—WAIVER.

Where defendants moved to set aside a judgment nunc pro tunc and to quash execution issued thereon and appealed from an adverse ruling, they waived any objection on the ground of want of notice of the nunc pro tunc proceeding.

3. MUNICIPAL CORPORATIONS (§ 570) — SPECIAL TAX BILL—JUDGMENT—REQUISITES.

A judgment in a suit on a special tax bill against described land, which on its face showed the parties plaintiff for whom and against what property a lien was adjudged, and which, when considered in connection with the antecedent entries of the record, showed that it related to defendants, was sufficient.

4. MUNICIPAL CORPORATIONS (§ 586)—ACTION ON SPECIAL TAX BILL—JUDGMENT.

The court, in a suit on a special tax bill against a lot described, may not render a personal judgment against defendants, who are parties merely because they are supposed to have an interest in the lot, and the judgment is against the lot, to be discharged by the payment of the money found due.

5. JUDGMENT (§§ 244, 310) — REQUISITES — NAMES OF PARTIES.

The names of the parties to a judgment should appear in full, but where they do not, the judgment may be corrected on motion, for the defect does not go to the substantial rights of the parties.

6. MUNICIPAL CORPORATIONS (§ 570) — SPECIAL TAX BILLS—JUDGMENT—REQUISITES.

Under Kansas City Charter, providing that in actions for real estate taxes it is only necessary to make defendants those having an interest in the land at the commencement of the suit, and declaring that the judgment, if for plaintiff, shall be that plaintiff recover the amount found due and costs of suit, to be levied on the real estate against which the tax is charged, a judgment in a suit on a tax bill which sets out the names of the parties, and which adjudges that plaintiff recover a specified sum, and that the judgment shall be a special lien on the property described, is sufficient.

7. JUDGMENT (§ 203) — FINAL JUDGMENT — STATUTES.

A petition contained a count in ejectment based on a sheriff's deed, under a judgment in a suit on a special tax bill, and a count demanding a recovery of the taxes paid by the purchaser in the event the tax deed was declared void. The court rendered judgment for defendants on the first count, permitted plaintiff to file an amended petition as to the second count, and then continued the cause. Plaintiff amended the second count and on a trial obtained a judgment thereon. Held that, under Rev. St. 1899, §§ 593, 694, 773 (Ann. St. 1906, pp. 619, 703, 750), authorizing the joinder of causes of action providing for separate trials thereon, and declaring that only one final judgment shall be given, the judgment on the amended second count was a final judgment, because the second count, as amended, was in effect an independent action, since the action stated in original second count was prematurely brought, as it had no existence until after the rendition of the judgment on the first count.

8. PROCESS (§ 6)—NECESSITY—AMENDED PETION—NEW CAUSE OF ACTION.

Where an amended petition allowed by the court after rendition of judgment is in effect a petition in a new action, defendants are entitled to service of process.

9. APPEARANCE (§ 20)—NONSERVICE OF PROCESS—WAIVER.

A defendant appearing and contesting each step in the trial of a cause, founded on an amended petition stating a new cause of action, thereby waives service of process.

10. MUNICIPAL CORPORATIONS (§ 577) — ENFORCEMENT OF SPECIAL TAX BILLS—SALES.

The failure of the sheriff to give to the purchaser, at a sale under a judgment enforcing a special tax bill against described land, a certificate of purchase, does not invalidate the execution under which the sale was had, even though the law requires a certificate, as, at most, it could only affect the sale.

11. MUNICIPAL CORPORATIONS (§ 577) — ENFORCEMENT OF SPECIAL TAX BILLS—SALES.

Under Kansas City Charter of 1889, providing that the lien for city taxes shall be enforced as in other cases of judgment, and declaring that a sale under such a judgment and execution shall be free from redemption, the sheriff selling land under an execution, issued on a judgment enforcing a special tax bill, need not give a certificate of purchase.

12. APPEARANCE (§ 25) — AMENDMENTS — OBJECTIONS— WAIVER—PLEADING.

Where defendants, residents and nonresidents, appeared in court after the allowance of an amended petition after the publication of the order to the nonresidents, and participated in the various steps in the trial of the cause, any objection to the allowance of the amendment was waived.

13. MUNICIPAL CORPORATIONS (§ 576)—ENFORCEMENT OF SPECIAL TAX BILLS—SALES.

Where the sheriff's report of sale stated that Bryce Smith was the highest bidder at a sale under execution, issued on a judgment enforcing a special tax bill, and that a certificate of purchase was given and the land conveyed to him by the sheriff, a clerical error in the report of the sheriff stating that the land was sold to B. Howard Smith must be disregarded, and it did not affect the validity of the sale.

14. JUDGMENT (§ 627)—CONCLUSIVENESS.

Where the court, in a suit to enforce a special tax bill against land, had jurisdiction of the subject-matter and of defendants, who raised objections to the suit, and who moved for new trial and in arrest of an adverse judgment and to quash the execution thereon, and appealed from adverse rulings, but did not perfect the appeal, they could not again raise the same questions in an action by the purchaser at execution sale under a judgment for the taxes paid.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by Bryce Smith against Ludwig W. Kiene and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action of ejectment to recover the possession of a certain lot situate in Kansas City, and particularly described in the pleadings. There was judgment for plaintiff, and defendants appealed.

The facts are few and are practically undisputed, and are substantially, as stated by counsel for appellants, as follows: "This is an action of ejectment brought by Bryce Smith against Ludwig W. Kiene, his wife, and daughter, Willie Kiene, to recover possession of a lot of ground in Kansas City, Mo., having a frontage of 27 feet on Eighteenth street, and extending back from the street to the depth of 100 feet. The property is a part of lots 1 to 4, block 4, Evans' addition, and lies between McGee and Oak streets, near the Belt Line. The common source of title of the land, except the east one foot, is Wilhelmina Kiene. She was the first wife of Ludwig W. Kiene, one of the defendants. Wilhelmina Kiene acquired the title to the ground by warranty deed in 1879. She died in 1881 or 1882, and left surviving her her husband, Ludwig W. Kiene, and Hugo L. Kiene, Dora C. Kiene, Willie Kiene, Bertha Merkel, now wife of Julius Merkel, Emma Dannell, now wife of Richard Dannell, and Edith Feinup, now wife of Fred Feinup, her children. Ludwig W. Kiene married again after the death of his first wife, and with his second wife was living in a cottage on the ground at the time of the commencement of this action. On December 12, 1899, the Barber Asphalt Paving Company obtained a judgment in a suit in the Jackson circuit court (No. 33,184) on a special tax bill for $236.60 against the east 27 feet of the west 57 feet of lot 1, being that part of the ground in controversy fronting on Eighteenth street and extending back from the street to the depth of 25 feet. A special execution was issued on this judgment on October 16, 1901, and on November 30, 1901, the land was sold by the sheriff. The sheriff's report of sale recites that Bryce Smith was the highest bidder, but the land was sold to B. Howard Smith. A certificate of purchase was given by the sheriff to Bryce Smith. The land not being redeemed from the sale on December 29, 1902, a sheriff's deed was given to Bryce Smith, conveying the east 27 feet of the west 57 feet of lot 1. All the property in question was sold for city taxes in 1897. Not being redeemed, a tax deed was given by the city treasurer on November 9, 1899, to L. M. Smith, daughter of B. Howard Smith, conveying the land for the taxes of 1897. She afterwards married George M. Hartmann, and in 1902 she brought a suit in ejectment in the Jackson circuit court (No. 7,666) as L. M. Hartman against Ludwig W. Kiene, his wife, and Willie Kiene. The first count of the petition was in the usual form for ejectment, and the second count alleged that the title of the plaintiff was derived through a tax deed, and that the plaintiff had paid out various sums of money for taxes, aggregating $289.56, and prayed that in the event that the tax deed was declared void, said sum be declared a lien on the land. The case came on for trial on December 9, 1902, and the court held the tax deed void and instructed the jury to find for the defendants on the first count. Leave was given plaintiff to file an amended petition making the heirs of Wilhelmina Kiene parties defendant, and the case was continued. On December 20, 1902, plaintiff filed a second amended petition, making the other children of Wilhelmina Kiene parties defendant. This amended petition in the first count sets out a cause of action in ejectment against Ludwig W. Kiene, his wife, and daughter, Willie, and in the second count alleges that there has been a trial on the first count...