State v. Ellison

• Decision Date: 13 December 1920
• Docket Number: No. 22000.,22000.
• Citation: 285 Mo. 301,226 S.W. 559
• Parties: STATE ex rel. VAN HAFFTEN v. ELLISON at al.
• Court: Missouri Supreme Court

226 S.W. 559

285 Mo. 301

STATE ex rel. VAN HAFFTEN v. ELLISON at al.

No. 22000.

Supreme Court of Missouri, in Banc.

December 13, 1920.

Certiorari to Kansas City Court of Appeals.

Petition by the State, on the relation of A. W. Van Hafften, for a writ of certiorari directed to James Ellison and others, constituting the Kansas City Court of Appeals, wherein it is alleged that the decision of such court in the case of Williams v. Van Deusen and others (219 S. W. 395) was in conflict with prior decisions of this court. Opinion of appellate court quashed.

John E. Dolman, of St. Joseph, for relator.

Eugene Silverman, of St. Joseph, for respondents.

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. Van Deusen 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. Van Deusen was in equity, and was filed to have canceled 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 canceled 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. Van Hafften, who is the owner of the bills, and of Van Deusen, the two defendants in the case, the decree was affirmed. The reason for which the tax bills were canceled 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 Van Deusen September 24, 1914, signed September 30, 1914, and it allowed 130 days for the completion of the improvement. Work was begun October 3d of said year, but on October 7th was stopped, and not resumed until some time 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 Van Deusen 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 improvement ordered was a single improvement instead of being separate improvements of different streets.

After the final disposition of the McQueen Case (McQueen v. Van Deusen, 189 Mc. App. 492, 176 S. W. 1057), Van Deusen again went to work, and, as stated, completed the performance of his contract about the 1st 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 canceled because Van Deusen 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 Van Deusen and his codefendant, 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, § 8840), and of the ordinance passed pursuant to the section, the time fixed for completion was extended for such a period as the contractor might "be actually and necessarily prevented from pursuing said work by bad weather, a general strike of his employés, or an injunction against him." In reply to that answer Williams alleged the said injunction was procured at the instance and through the instrumentality of the contractor, and for the purpose of stopping the work, and that an injunction so procured did not operate to extend the time beyond the period provided in the contract. The circuit court found Van Deusen, the contractor, had instigated the suit of Lizzie McQueen to enjoin the improvement, had maintained said suit through all its stages, and that his sole purpose in doing so was to obtain a judicial determination of the validity of the ordinance for the improvement; that but for the instigation and maintenance of it by the contractor the injunction suit would not have been brought. Therefore the circuit court held the time stipulated in the contract for the completion of the work was not extended by the writ of injunction issued in the McQueen Case.

The Kansas City Court of Appeals said in its opinion in the Williams Case there was no question that Van Deusen did instigate and maintain the McQueen suit, but not from any fraudulent or corrupt motive, or for the purpose of securing delay; that it was the wide-spread opinion in legal circles the ordinance in question was void because it authorized the improvement of several different streets under different names, and the purpose of the McQueen suit, which was brought in a friendly spirit against the contractor and the city, was to determine the validity of the ordinance, the question being a public one, which the city and contractors generally were interested in having settled, as other ordinances of the same kind had been passed and contractors had refused to bid for work authorized by them because of a doubt about whether they were legal. The Court of Appeals said also the city, by its counsellor, defended the McQueen suit through the courts; that an honest and bona fide effort was made to have the ordinance declared invalid, and the suit was pressed earnestly and faithfully; that no extension of the time for completion of the improvement was formally applied for by Van Deusen during the pendency of the injunction suit, or granted by the legislative authorities of the city. Said court held, as the circuit court had, that as Van Deusen was the real party in interest in the McQueen suit. and had caused it to be instituted and a restraining order to be issued against himself, he was entitled to no extension of time to finish the work while the temporary writ of injunction was in force. The relator in the present proceeding, Van Hafften, insists this ruling of the Court of Appeals permitted a collateral attack on the judgment in the McQueen Case by Williams, and therein is in conflict with the decision of this court in these cases: Wilson v. Rainey, 74 Mo. 229; Lovitt v. Russell, 138 Mo. 474, 482, 40 S. W. 123; Vrana v. City of St. Louis, 164 Mo. 146. 150, 64 S. W. 180; Lieber v. Lieber, 239 Mo. 1, 54, 143 S. W. 458; Harter v. Petty, 266 Mo. 296, 181 S. W. 39, 40.

The relator also argues that the decision of the Court of Appeals was erroneous for a different reason in allowing Williams to collaterally attack the judgment in the McQueen Case, and not only erroneous, but in conflict with the decision of this court in Abington v. Townsend, 271 Mo. 602, 197 S. W. 253.

In support of the first contention it is argued that the city, being a defendant in the McQueen Case, represented all the lot owners against whose property tax bills would be issued, and the owners of the lots at the date of said judgment were therefore bound by the judgment.

In support of the second contention the argument is that, although Williams was not the owner of his lot at that time, and if, in consequence of that fact he was not represented by the city when the McQueen judgment was rendered, but was a stranger to that suit, nevertheless, as a stranger, he was precluded from attacking collaterally the McQueen judgment because he acquired title to his lot after the rendition of it and after the tax bills were issued.

1. The attorney for the relator, Van Hafften, does not contend the decision of the Court of Appeals in the instant case that the injunction procured by Van Deusen against himself worked no extension of the time in which he was bound to complete his contract is in conflict with any decision of this court. The proposition invoked for the relator is that the decision of said court permits Williams in the present case to attack collaterally the judgment in the McQueen Case, and in that respect is in conflict with the decisions of this court cited above. The reasons for the ruling of the Court of Appeals on the proposition were set forth in the opinion on the motion of Van Deusen for a rehearing. The court said relief against the judgment was not demanded by Williams; that the judgment passed only on the legality of the city ordinance authorizing the improvement of the street; whereas in the present case that question is not...