State ex rel. Assoc. Holding v. City of St. Joseph

• Decision Date: 01 February 1943
• Docket Number: No. 20224.,20224.
• Citation: 169 S.W.2d 419
• Parties: STATE OF MISSOURI EX REL., ASSOCIATED HOLDING COMPANY, RESPONDENT, v. CITY OF ST. JOSEPH, APPELLANT.
• Court: Missouri Court of Appeals

169 S.W.2d 419

STATE OF MISSOURI EX REL., ASSOCIATED HOLDING COMPANY, RESPONDENT, v. CITY OF ST. JOSEPH, APPELLANT.

No. 20224.

Kansas City Court of Appeals, Missouri.

February 1, 1943.

Appeal from Buchanan Circuit Court. — Hon. Emmett J. Crouse, Judge.

REVERSED.

Louis Kranitz and Conkling & Sprague for respondent.

(1) On an appeal in a mandamus proceeding the discretion of the trial court in granting the writ will not be reversed where it appears to have been lawfully exercised and no abuse is shown. Sampson Distributing Co. v. Cherry, 346 Mo. 885, 891. Since mandamus is an action at law, a finding by the trial court, if supported by any substantial evidence, will not be disturbed. State ex rel. Haeusler v. Ins. Co., 169 Mo. App. 354, 363; State ex rel. Holmes v. Kernes, 180 Mo. App. 355, 358; State ex rel. Journal Printing Co. v. Dreyer, 183 Mo. App. 463, 479; State ex rel. Hyde v. Medical Society, 295 Mo. 144, 160. This action at law having been tried before the court, and no finding of fact having been requested and no declaration of law having been asked or given, the judgment, if it can be sustained on any theory, should be affirmed. Stoepler v. Silberberg, 220 Mo. 258, 269; Briggs v. Joint Stock Land Bank, 328 Mo. 23, 25; Railsbuck v. Bowers (Mo.), 257 S.W. 119, 121; Underwood v. Oregon County, 320 Mo. 514, 518; Mortgage Inv. Co. v. Robinson (Mo. App.), 153 S.W. (2d) 77, 78; Heath v. Perky Brothers Transfer & Storage Co. (Mo. App.), 157 S.W. (2d) 600. (2) Mandamus lies to compel the issuance of new and corrected tax bills against the city. (a) In any case of street improvement alongside of a place held for public use other than a highway, it is the duty of the city to issue a special tax bill against itself for its proportionate share of the cost of the work, in default of the payment of which a money judgment may be recovered against the city. Sec. 6421, R.S. 1939; Barber Asphalt Paving Co. v. City of St. Joseph, 183 Mo. 451; Associated Holding Co. v. W.B. Kelley & Co., 230 Mo. App. 267, 274. (b) Such duty devolving upon the city is a plain, imperative one, and the original tax bills having been issued against a party not liable for the cost of the improvement, relator is entitled to a writ of mandamus to compel the issuance of new and proper tax bills which can be enforced against the city. State ex rel. Paving Co. v. St. Louis, 183 Mo. 230; State ex rel. Meek v. Chillicothe, 237 Mo. 486; Likes v. City of Rolla, 190 Mo. App. 140. (c) The question of relator having an adequate remedy, other than by mandamus, was not raised in the trial court, and was therefore waived. State ex rel. Nee v. Tippin (Mo. App.), 268 S.W. 665, 666. That Secs. 7379-7384, R.S. 1939, have no application to the case at bar may be conceded. An ex-parte affidavit of counsel for the city to the effect that relator's counsel made a certain statement to the trial court, appended to and filed with the motion for new trial does not preserve such extraneous matter for review. Bright v. Sammons (Mo. App.), 214 S.W. 425, 426. (3) The mandamus proceeding was properly brought against the city. (a) Mandamus would lie against the city to compel it to issue proper tax bills against itself, even if the charter had imposed the ministerial duty of making them out on some officer or agency who was not made a party to the suit. State ex rel. Meek v. Chillicothe, 237 Mo. 486. (b) However, in this case, the statutory duty of issuing tax bills against the city itself, is wholly placed upon the municipality itself, and not upon any officer or agency thereof. Sec. 6421, R.S. 1939. The municipality is therefore the only necessary or proper respondent Sec. 6229, R.S. 1939, 38 C.J. 605, sec. 82, 910, sec. 657; 4 Dillon on Municipal Corporation (5 Ed.), secs. 1521, 1533; State ex rel. Goldman v. Workmen's Comp. Comm., 325 Mo. 153, 154; State ex rel. Hundley v. City of Alexandria, 164 La. 624, 114 So. 491, 492; City of Nacogdoches v. McBride (Tex.), 27 S.W. (2d) 866, 867; Middle State Utilities Co. v. City of Osceola, 231 Iowa, 462, 1 N.W. (2d) 643. Moreover, the city is the real party in interest. State ex rel. Kansas City v. Trimble, 322 Mo. 360, 368; Adams v. Town of Weston (Ga.), 183 S.E. 69, 71. (4) The judgment of this court in the former suit between the parties is not res judicata and is no bar to this action. (a) The city concedes that in the two actions the same issue was involved. Page 22 of appellant's brief. The cause of action was the same in both actions, even though the ultimate remedy sought in each case was different. Chesnut v. Mertz (Mo. App.), 144 S.W. (2d) 194. If the present suit had been upon a different cause of action the former judgment would be no bar to its maintenance. 34 C.J. 874, sec. 1283. (b) But while the cause of action was the same in both suits, the plea of res judicata must fail because the judgment of reversal rendered by this court in the former action was not a final judgment upon the merits. Associated Holding Co. v. W.B. Kelley & Co., 230 Mo. App. 267. To constitute a former judgment at bar it must have been on the merits. Dahlberg v. Fisse, 328 Mo. 213, 224; State ex rel. National Lead Co. v. Smith (Mo. App.), 134 S.W. (2d) 1061, 1068. When the former judgment was render because of a defective petition, it forms no bar to another action. 34 C.J. 794, sec. 1212; Wells v. Moore, 47 Mo. 229. A judgment of reversal which does not purport to pass upon the merits of the case does not operate as res judicata. 34 C.J. 899, sec. 1309; Wing v. Insurance Co., 167 Mo. App. 14. (5) This action is not barred by the five-year Statute of Limitations (Sec. 1014, R.S. 1939). (a) The general statutes of limitations have no application to mandamus proceedings. 38 C.J. 831, sec. 531. Mandamus is a special proceeding to which our General Code of Civil Procedure does not apply. State ex rel. Hentschel v. Cook (Mo. App.), 201 S.W. 361, 363, and cases therein cited. If the statutes of limitations might be applied to this mandamus proceeding by analogy, then the general ten-year Statute of Limitations (Sec. 1013, R.S. 1939), which governs actions for relief not otherwise provided for, should be applied. Stark v. Zehnder, 204 Mo. 451; Hoester v. Sammelmann, 101 Mo. 619. (b) But even if the five-year Statute of Limitations were applicable to this mandamus proceeding (which we deny), it would be no bar to its maintenance, because it was brought within one year after this court's reversal of relator's judgment in the former action between the parties, so was still within the limitation period claimed by the city be a bar. Sec. 1026, R.S. 1939 (4 Mo. R.S. Ann., sec. 231); Chesnut v. Mertz (Mo. App.), 144 S.W. (2d) 194. The word "reversed" as used in Sec. 1026, R.S. 1939, means "reversal wherein the merits of the cause have not been adjudicated." Strottman v. Railroad, 228 Mo. 186. (c) Moreover, since the city, by resistance to and prolonged litigation over the original tax bills, prevented the relator from sooner beginning this proceeding to enforce its right to proper tax bills, it should not be held that relator is barred by the city's failure to perform a duty over which relator had no control. Seested v. Dickey, 318 Mo. 192, 209; The Dollar Savings Bank v. Ridge, 183 Mo. 506, 522; Dickey v. Andover Inv. Co. (Mo. App.), 45 S.W. (2d) 1086, 1089. (6) The city holds Park 1 for public use. (a) Whether Park 1 be a "park" or a "parkway," it is a "place held for public use other than a street, avenue, alley or highway." Sec. 6421, R.S. 1939. (b) The statutory dedication vested the fee in the city. Secs. 12804 and 12809, R.S. 1939; Otterville v. Bente, 240 Mo. 291, 296; Laddonia v. Day, 265 Mo. 383, 392. The doctrine of dedication applies to land marked on the plat as parks as well as to those marked thereon as streets. 26 C.J.S. 59, sec. 8, 82, sec. 23 b. By accepting the plat the city accepted the whole tract as platted. Guitar v. St. Clair, 238 Mo. 617, 625; Heitz v. St. Louis, 110 Mo. 618, 625. The power granted to the board of public works to approve the plat was discretionary, not ministerial. Sec. 6560, R.S. 1939; Stapenhorst v. St. Louis, 287 Mo. 285, 297-8. The offer of dedication could have been rejected by the city. 26 C.J.S. 113, sec. 42. Cases involving the liability vel non of the city for injuries resulting from a failure to keep a street in repair are not in point. Bell v. Walkley (Mo. App.), 27 S.W. (2d) 456, 458. (e) The city's acts and conduct with respect to Park 1, including the refusal of its board of public works to consent to an abandonment thereof, estops the city from claiming that it does not hold Park 1 for public use. Page 147 of record. The city may hold a "park" in trust for public use even though the land had never been accepted by the board of park commissioners and by it incorporated into the system of public parks adopted by and under its control. Secs. 6430, 6431, 6469 and 6560, R.S. 1939. While section 6560 limits the general statutes applying to dedication, none of the charter provisions relating to the board of park commissioners limits or qualifies such statutes relative to dedication. Any other construction of the charter would read into it a provision not expressed nor necessarily implied by its terms. (d) Even if the trial court's finding that the city was vested with the fee simple absolute title to Park 1 in trust for public use was not as accurate as it might have been, it would make no difference in this case, because, if Park 1 is held for public use, it is immaterial whether such holding be of the nominal fee or a simple easement. Caruthersville v. Huffman, 262 Mo. 375. Moreover, there having been no request for any finding of fact in this case, the trial court's finding was in the nature of a voluntary statement, and presents no question for review, other than as a general finding. Conley v. Crown Coach Co. (Mo.), 159 S.W. (2d) 281, 285. The facts being undisputed and the judgment being...