State ex rel. Vanhafften v. Ellison

• Decision Date: 13 December 1920
• Citation: 226 S.W. 559,285 Mo. 301
• Parties: STATE ex rel. A. W. VANHAFFTEN v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

226 S.W. 559

285 Mo. 301

STATE ex rel. A. W. VANHAFFTEN v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

December 13, 1920

Record quashed.

John E Dolman for relator.

(1) In certiorari, to review the opinion of a Court of Appeals reference in the opinion to the pleadings, judgment and orders in the case of McQueen v. VanDeusen, makes them as much a part of the opinion as if fully written out therein. State ex rel. Kansas City v. Ellison, 220 S.W. 498. (2) In holding and deciding that "if it be said that insofar as the decree herein finds that the McQueen case was a sham, it is a collateral attack therein, then it can be said in answer that the plaintiff herein was not a party to the McQueen case, nor in privity with any one who was or should have been a party; hence his right to show in this case that the McQueen case was in law collusive, is not impaired," is in conflict with the prior decisions of this court in the following cases: Wilson v. Rainey, 74 Mo. 234; Jaicks v. Oppenheimer, 264 Mo. 693. And it further appearing in said opinion that plaintiff acquired title to the lot in question the day before he brought his suit, long after the McQueen judgment was rendered, said opinion is also in conflict with Abington v Townsend, 197 S.W. 253. (3) In holding and deciding that "we do not regard this case as making any attack upon the McQueen judgment, hence no question of collateral attack is involved" said decision is in conflict with the prior decisions of this court in Lovitt v. Russell, 138 Mo. 482; Leiber v. Leiber, 239 Mo. 54; Vrana v St. Louis, 164 Mo. 150; Harter v. Betty, 181 S.W. 40. (4) The holding and deciding that "no relief against that judgment is sought or granted" is in effect a holding that the temporary injunction granted in the McQueen case was no part of that judgment and could not be continued in force pending an appeal to the Court of Appeals which decision is in conflict with the prior decisions of this court in State ex rel. v. Dearing, 180 Mo. 64; Comm. Co. v. Spencer, 236 Mo. 628.

Eugene Silverman for respondents.

(1) No question of collateral attack upon the judgment in the McQueen case is involved in the opinion complained of. The question decided arises upon the construction of the improvement contract, and the decision is that delay caused by the contractor cannot be taken advantage of by him for extension of time of performance, and that this is true, even though such delay is because of injunction where such injunction is procured by the contractor against himself. The McQueen case involved the validity of the proceedings prior to the letting of the contract; this case involves the performance of the contract. Hence no matter litigated in the McQueen case is here brought into question. (2) The opinion complained of is not in conflict with Wilson v. Rainey, 74 Mo. 229. That case is one involving matter of general interest to all the inhabitants of a county. No question of special taxation for special benefits was there involved. That a municipality is the representative of the lot-owners where their interests are distinct and different from the general public has never been held by this court, and that it is not their representative in such cases has been often held in other jurisdictions. 23 Cyc. 1269; Long v. Wilson, 119 Iowa 267; James v. Louisville, 40 S.W. 912; Tifft v. City of Buffalo, 49 N.Y.S. 439; Rork v. Smith, 55 Wis. 67; Murphy v. Summersett, 147 P. 202; Loesnitz v. Seelinger, 25 N.E. 1039; Haese v. Heitzeg, 114 P. 816. Even where otherwise applicable, the rule of the Rainey case never applies in collusive cases, such as the McQueen case. 2 Black on Judgment, sec. 508; 15 R. C. L. 841, 857. (3) The city was not a necessary party to the McQueen case, and no relief was asked against the city that would not necessarily follow from a granting of relief against the contractor. Prior to the institution of the McQueen case the contractor had entered into contract with the city for the construction of the work, and therefore the city was not defending, either for its own benefit or that of its inhabitants, any action in which it had any legal interest. Under such conditions no estoppel by representation could arise. (4) There is no conflict with the other cases cited in relator's brief. In those cases a party to a former action, and who was actually in court in such action, attempted, in a collateral proceeding, to again litigate matters concluded by such former action. (5) If this case involved a collateral attack upon the McQueen case, Williams would not be barred from making such attack, as he was neither party nor privy to the McQueen case, and that case was a collusive action. Callahan v. Griswold, 9 Mo. 792; State ex rel. v. St. Louis, 145 Mo. 567; 1 Black on Judgments, sec. 260; 2 Black on Judgments, sec. 600; 15 R. C. L. 841, 857; 23 Cyc. 1099. (6) The holding in Arlington v. Townsend, 197 S.W. 253, has no application. In that case a party purchasing lands was held bound by a decree previously entered with respect to that same land and directly affecting the title he received. The purchase was of the "subject-matter of the judgment" (197 S.W. 257). The lot owned by Williams was not involved in the subject-matter of the McQueen case. (7) The opinion in Williams v. VanDeusen does not directly or indirectly deny the right of a court to keep an injunction in force pending an appeal. There can, therefore, be no conflict with State ex rel. v. Dearing, 180 Mo. 64, or Commission Co. v. Spencer, 236 Mo. 628.

OPINION

In Banc

Certiorari.

GOODE J.

The record in this case was brought up from the Kansas City Court of Appeals pursuant to a writ of certiorari issued out of this court to the respondents, the judges of said Court of Appeals. The writ was issued upon the petition of the relator, wherein he alleged that the decision of the Court of Appeals in the case of Willis Williams, Respondent, v. R. W. VanDeusen et al., Appellants, 219 S.W. 395, was in conflict with prior decisions of this court. Gathering the facts from the opinion of the Kansas City Court of Appeals, we learn the said suit of Williams v. VanDeusen was in equity and was filed to have cancelled a series of five installment tax bills issued against a lot, in the City of St. Joseph, owned by Williams, to pay for paving the street in front of the lot. The tax bills were cancelled by the decree of the court of first instance as casting a cloud on the title to the lot, and on the appeal of A. W. VanHafften, who is the owner of the bills, and of VanDeusen, the two defendants in the case, the decree was affirmed.

The reason for which the tax bills were cancelled was, that the work of improving the street was not completed by the contractor, in the time prescribed by the ordinance which authorized the improvement. The contract was awarded to VanDeusen September 24, 1914, signed September 30, 1914, and it allowed one hundred and thirty days for the completion of the improvement. Work was begun October 3rd of said year, but on October 7th was stopped and not resumed until sometime in May or June, 1915, the improvement being finished about November 1, 1915. The cause of the suspension of work was the filing of a suit by Lizzie McQueen against VanDeusen and the City of St. Joseph to enjoin the paving of the street, mainly for the alleged reason that, contrary to the controlling statute, the ordinance to authorize the improvement had extended it over streets having different names, running in different directions, and not parts of a continuous highway. In that suit a temporary restraining order was issued by the circuit court, which was continued in force by an order of said court pending an appeal taken by Lizzie McQueen, from the judgment given against her by the circuit court, to the Kansas City Court of Appeals. The Court of Appeals affirmed the judgment, holding the ordinance in question provided for an improvement along a continuous thoroughfare of the city, not running in a direct line throughout its course nor bearing the same name over its entire length, but, in fact and in law, a single highway, so that the improvements ordered was a single improvement, instead of being separate improvements of different streets.

After the final disposition of the McQueen case (McQueen v. VanDeusen, 189 Mo.App. 492, 176 S.W. 1057), VanDeusen again went to work and, as stated, completed the performance of his contract about the first of November, 1915, but not within the number of days allowed for completion in his contract with the city. Tax bills were issued to pay the cost of the improvement, five of them constituting an apparent lien against the lot of Willis Williams and casting a cloud upon his title. Williams acquired this lot by gift from the Bowen Investment Company, the lot being of little value because "of a hole in it." The deed to Williams was executed and delivered by the Bowen Investment Company the day before Williams filed the suit to cancel the tax bills, but both Williams and the Investment Company said the conveyance was absolute, and that Williams was the sole owner of the lot when he sued.

Williams asked to have the tax bills cancelled because VanDeusen did not finish the work within the time stipulated, to-wit, 130 days after the date of the contract between him and the city. In defense, VanDeusen and his co-defendant, Van Hafften, to whom the tax bills had been assigned for value, alleged the completion of the work within the period provided in the ordinance was prevented by the injunction issued in the McQueen case, and that by virtue of a section of the statutes (R. S. 1909, sec. 8840), and of the ordinance passed pursuant to the section, the time fixed for completion...