St. Louis County ex rel. Scott v. Marvin Planing Mill Co.
| Decision Date | 04 April 1933 |
| Citation | 58 S.W.2d 769,228 Mo.App. 1048 |
| Parties | COUNTY OF ST. LOUIS, EX REL. WALTER SCOTT, APPELLANT, v. MARVIN PLANING MILL COMPANY, A CORPORATION, RESPONDENT |
| Court | Missouri Court of Appeals |
Motion for rehearing denied April 14, 1933.
Certiorari denied by Supreme Court.
Appeal from the Circuit Court of St. Louis County.--Hon. Fred E Mueller, Judge.
Reversed and remanded.
Ralph Nolan, Rush & Brown for appellant.
(1) The demurrer should have been overruled since it conclusively appears from such allegations that the cause of action was not barred by the Statute of Limitations. Secs. 862, 7922, R S. 1929. (2) General statutes of limitation relate and apply to the remedy and do not extinguish or destroy the substantive right or cause of action. Boyce v. Mo. P. R. R., 168 Mo. 583, 68 S.W. 920. (3) The right to institute suit for the enforcement of the lien of the special tax bill did not accrue until thirty days from its date and the five-year period did not begin to run until the right to institute suit to enforce the lien had accrued. Beard v. Citizens Bank, 37 S.W.2d 678; Shrabauer v. Schneider, 224 Mo.App. 304, 25 S.W.2d 529; State v. Logan, 195 Mo.App. 171, 190 S.W. 75; Boyd v. Buchanan, 176 Mo.App. 56, 162 S.W. 1075; State ex rel. v. Vogelsang, 183 Mo. 17, 81 S.W. 1087.
Seneca C. Taylor for respondent.
(1) The cause of action accrues and the statute begins to run from the date of the issuance of the tax bill. Turner v. Burns, 42 Mo.App. 94; Kansas City to Use v. Porter, 71 Mo.App. 315, l. c. 327; City of St. Louis to Use v. Newman, 45 Mo. 138; Everett v. Marston, 186 Mo. 587, l. c. 600-601; Hoffman v. Houck, 282 S.W. 448; Coatsworth Lumber Co. v. Owen, 186 Mo.App. 543, l. c. 555, 556; Koch v. Shepherd, 193 S.W. 601; Folks v. Yost, 54 Mo.App. 55; Sec. 862, R. S. 1929, subd. 2; Laws of Mo. 1848, 1849, p. 74, sec. 4, subd. 2, approved Feb. 24, 1849, to take effect July 4, 1849 (p. 109). (2) That the statute provides that the issuing body may cause the tax bill to bear eight per cent interest to begin thirty days after issue does not change the rule that the cause of action accrues upon the issuing of the tax bill. Coatsworth Lumber Co. v. Owen, 186 Mo.App. 543, l. c. 555, 556, 559, 560; City Trust Co. v. Cunningham, 7 S.W.2d 456, l. c. 458; City of Springfield ex rel. v. Kirby, 73 Mo.App. 640; Folks v. Yost, 54 Mo.App. 55, l. c. 59, 60; Clemens v. Knox, 31 Mo.App. 185, l. c. 197, 198; State ex rel. v. Edwards, 162 Mo. 660, l. c. 665; Sec. 7922, R. S. 1929; Laws Mo. 1917, p. 442, sec. 54.
This is a suit brought by appellant (hereinafter called plaintiff), against respondent (hereinafter called defendant), to enforce the lien of a special tax bill issued by the County Court of the County of St. Louis, Missouri, for the improvement of Ella Avenue, a public roadway in said county. Defendant filed a demurrer to plaintiff's petition on the ground that it appeared upon the face thereof that plaintiff's action was barred by the Statute of Limitations. The court sustained defendant's demurrer. Plaintiff refused to plead further and judgment was rendered in favor of defendant. Plaintiff brings the case here by appeal.
Plaintiff's petition was filed in the Circuit Court of the County of St. Louis, on February 24, 1931. The petition at that time named Marvin-Hay Mill Works Company, a corporation, as defendant. Thereafter, on February 27, 1931, plaintiff, by leave of court, amended the petition by interlineation, changing the name of defendant from "Marvin-Hay Mill Works Company" to "Marvin Planing Mill Company," at the same time dismissing the cause as to Marvin-Hay Mill Works Company.
The petition alleged that Ella Avenue was a public roadway in the County of St. Louis, Missouri; that said county contained more than seventy-five thousand inhabitants and that the roadway was located in an unincorporated residence district; that defendant was a corporation and the owner of record of the real estate described in the petition and that plaintiff was the owner and holder of special tax bill No. 719 issued by the County of St. Louis on February 25, 1926, to the Blackburn-Cream Construction Company and assigned by said company to plaintiff.
The various steps were alleged by which the county court made provisions for constructing sidewalks and roadway along Ella Avenue, the letting of contracts for such improvements, the completion of the work, the approval and acceptance thereof by the county court and then alleged that:
"Thereafter and on the 26th day of February, 1926, the said county court, by an order duly made and entered of record, directed the issuance of the special tax bill above referred to against Lots 20, 21 and 22 of Block 24 of Watson's Fruit Hill Subdivision having an aggregate frontage on the said Ella Avenue of seventy-five (75') feet in the sum of four hundred seventy-four and twenty-five hundredths ($ 474.25) dollars for the roadway, forty-six and forty-nine hundredths ($ 46.49) dollars for curbing, and seventy-two ($ 72) dollars for sidewalks, making an aggregate total of five hundred ninety-two and seventy-four hundredths ($ 592.74) dollars, and the said tax bill providing that it would bear interest at the rate of eight per cent per annum thirty days after its date and until paid, and that said tax bill No. 719 was thereupon duly issued, registered and attested and delivered to the contractor therefor and became due and payable on the 25th day of March, 1926."
It was also alleged in the petition that defendant had made a payment on December 31, 1930, of $ 200 on account of the principal of said special tax bill and that the balance of principal and accrued interest were unpaid.
Defendant's demurrer to the petition is as follows:
"Comes now the defendant and demurs to the petition of the plaintiff herein and for ground of demurrer says that said petition does not state facts sufficient to constitute a cause of action in that it appears upon the face of said petition that the plaintiff's cause of action, if any he has, accrued more than five years before the commencement of this suit, and has become completely barred by the Statute of Limitations."
Counsel for plaintiff contend that the court should have overruled the demurrer and present several reasons to support their position.
The pertinent part of Section 7922, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 7922) upon which the special tax bill in question is founded provides as follows:
"Said special tax bills are to be issued upon the completion, approval and acceptance by the county courts, and may bear interest, after thirty days, at the rate of eight per cent per annum, and every such special tax bill shall be a lien against the lot or piece of ground described in the same until the same is paid."
Section 860, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 860), provides that:
"Civil actions other than those for the recovery of real property can only be commenced within the periods prescribed in the following sections after the causes of action shall have accrued . . ."
Section 862, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 862), names various actions which can only be commenced within five years. The second subdivision thereof is as follows:
"An action upon a liability created by a statute other than a penalty or a forfeiture."
It is conceded by counsel for the respective parties that the above quoted portion of the last-mentioned statute is applicable to this case, but they do not agree as to when the five-year period began to run. Counsel for plaintiff urge that the five-year period did not begin to run until thirty days after the date of the issuance of the tax bill. Counsel for defendant insists that it began to run from the date of issuance. There being no limitation expressed in Section 7922, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 7922), the statute upon which the special tax bill is founded, and it being conceded that the action herein is "upon a liability created by a statute," the general five-year Statute of Limitations applies. [Koch v. Shepherd (Mo. App.), 193 S.W. 601.] In determining whether or not the five-year Statute of Limitations has run its course so as to constitute a bar in this case, we must first determine the meaning of the statute upon which the special tax bill is founded and the purpose sought to be accomplished by the Legislature through the enactment thereof.
In Lumber Co. v. Railroad, 216 Mo. 658, l. c. 672, our Supreme Court in construing a statute said:
"Nor should we give the statute such construction as would make it unreasonable and absurd, for it is to be presumed that such was not the legislative intent."
In the same case the court quoted with approval from Thompson v. State, 20 Ala. 54, 62, wherein it was said that in construing a statute the court is often required:
"To look less at the letter or words of the statute than at the context, the subject-matter, the consequences and effects, and the reason and spirit of the law, in endeavoring to arrive at the will of the law giver."
In St. Louis v. Christian Brothers College, 257 Mo. 541, 552, 165 S.W. 1057, the court said:
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