Tremayne v. City of St. Louis

• Citation: 6 S.W.2d 935,320 Mo. 120
• Decision Date: 18 May 1928
• Docket Number: 26751
• Parties: John W. Tremayne and Louisa Tremayne v. City of St. Louis, Appellant
• Court: United States State Supreme Court of Missouri

6 S.W.2d 935

320 Mo. 120

John W. Tremayne and Louisa Tremayne v. City of St. Louis, Appellant

No. 26751

Supreme Court of Missouri

May 18, 1928

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Reversed and remanded.

Julius T. Muench and Oliver Senti for appellant.

(1) A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, or binding effect, by parties or privies, in any collateral action or proceedings, except for fraud in its procurement. 34 C. J 511, 513. The foregoing rule is applicable to the judgment in a condemnation suit. Leonard v. Sparks, 117 Mo. 103; Burke v. City of Kansas, 118 Mo. 309; Connors v City of St. Joseph, 237 Mo. 623; Union Depot Co. v. Frederick, 117 Mo. 138. If plaintiffs desired to question the right of the circuit court to enter its judgment in the condemnation suit because the city had graded the street, they should have done so in that case, and, if the court decided against them improperly, they should have appealed. Burke v. City of Kansas, 118 Mo. 309; Connors v. City of St. Joseph, 237 Mo. 612. (2) The city, in pleading the proceedings and judgment in the condemnation suit, was not required to anticipate that the plaintiffs would attack its validity. 31 Cyc. 109; Sawyer v. Wabash Ry. Co., 156 Mo. 478. The answer setting up the proceedings and prior judgments in the condemnation suit, was a complete defense to the allegations of the petition. Bray v. Land Const. Co., 221 S.W. 818. It was error to strike out the city's affirmative defense. Plaintiffs should have been required to meet the allegations in the answer, by a reply, either denying them, or setting up new matter. Sawyer v. Railroad, 156 Mo. 478. (3) The case of Bruecker v. St. Louis, 246 S.W. 889., on which plaintiffs relied below, is not decisive, because plaintiffs here, who were defendants in the condemnation suit, did not, in that suit, challenge the right of the court to proceed to final judgment against them after the grading of the street began, and because they paid the judgment in the condemnation suit. (4) If plaintiffs submitted themselves to the jurisdiction of the court in the condemnation suit, they are bound by the condemnation judgment, even if the grading of the street began before it was rendered. Bruecker v. St. Louis, 246 S.W. 889. The circuit court had jurisdiction of the parties and the subject-matter in the condemnation suit. If it is essential to the validity of the condemnation judgment that the plaintiffs here submitted themselves to the jurisdiction of the court and presented their claim, that fact will be presumed, unless the record in the condemnation suit is to the contrary. Sullinger v. West, 211 S.W. 65. (5) The plaintiffs admitted that they were defendants in the condemnation suit for the grading of Prather Avenue adjacent to their property; that final judgment was entered there on March 24, 1920; and that they paid the judgment against their property in that case. In the absence of a showing that the condemnation judgment is invalid, it is a bar to this suit. Burke v. City of Kansas, 118 Mo. 309; Connors v. City of St. Joseph, 237 Mo. 612. (6) There are some cases holding that a void judgment cannot be made valid by ratification, waiver, or estoppel; but the generally accepted doctrine is that the party who would have a right to avoid the judgment may give it validity by his acceptance and ratification of it, or be estopped by his conduct to impeach its validity. 34 C. J. 510, sec. 814. The plaintiffs admitted that they paid the judgment in the condemnation suit, assessing special benefits against their property. This was a ratification of the judgment in the condemnation suit. Ryan v. Doyle, 31 Iowa 53; Haynes v. Powell (1 Lee), 69 Tenn. 353.

J. E. Patton and Joseph Reilly for respondents.

(1) The defendant city has erroneously assumed that the instant case constitutes an attack upon the validity of the judgment rendered in the case of City v. Foerstel. The fact is that this is not an attack on said judgment, neither direct nor collateral, for the reason that such judgment in no way can affect the rights of plaintiffs to proceed against the city in trespass for the tort in damaging their property. Such judgment, having been rendered after the city had lowered the said Prather Avenue, could have no retroactive force or effect to legalize the unlawful act of the said city in proceeding with such work before such judgment was rendered of record. Powers v. Hurmert, 51 Mo. 136; Bruecker v. St. Louis, 246 S.W. 889. (2) The defendant has also erred in contending that it had a right to set up the condemnation proceeding as constituting a plea of res adjudicata of plaintiffs' action in trespass. Bruecker v. St. Louis, 246 S.W. 889. In the case cited specific note is made to the effect that no showing had been made that the condemnation suit was not regular in every respect, while in the case at bar the pleadings set up facts showing the right of plaintiffs to recover in trespass, in which case the condemnation suit was not a defense. Powers v. Hurmert, 51 Mo. 136; Hunt v. City of Boonville, 65 Mo. 623; Soulard v. St. Louis, 36 Mo. 546; Hickerson v. City of Mexico, 58 Mo. 61. (3) It is not error to strike out the city's affirmative defense and, having gone to trial on other issues joined by the pleading, the defendant city cannot be heard to complain in the appellate court, having waived its right to do so. 31 Cyc. 752-753; Daken v. Mercantile Co., 197 Mo. 238; Hansard v. Menderson Clothing Co., 73 Mo.App. 584; Hill v. Morris, 21 Mo.App. 258; Scovill v. Glasner, 79 Mo. 455; Fuggle v. Hobbs, 42 Mo. 541. (4) It was not necessary to challenge the right of the court to proceed to final judgment after the grading of the street had been begun, unless the plaintiffs had filed their claim for damages in the condemnation suit, they were not estopped to bring into action their independent common-law remedy, which the plaintiffs herein proceeded to do. Further, in paying the assessment made against them in the condemnation suit they waived no previous right that accrued to them by reason of the trespass committed by the defendant city, and the condemnation suit does not relate back so as to justify a previous trespass. Bruecker v. St. Louis, 246 S.W. 889; Powers v. Hurmert, 51 Mo. 136. (5) The positive provisions of the statute, Sec. 8697, R. S. 1909, and Sec. 7783, R. S. 1919, is that if any claims are made the clerk shall note same on the record. The files in the said condemnation suit show no record of any claim having been filed; hence, it will not be presumed that courts and judicial officers do what is required of them to be done in any given case or circumstance, and that in this instance a claim was filed.

OPINION

Graves, P. J.

Action for consequential damages to property abutting upon Prather Avenue in St. Louis, Missouri, by reason of lowering the grade of Prather Avenue. The dismissal nisi of the second count of the amended petition leaves the case now here as such an action.

We have read the statement of counsel upon both sides, as well as the abstract of record herein. Counsel for respondent do not expressly admit the correctness of the statement made by appellant, as is contemplated as a possibility by our Rule 15 as adopted October 23, 1917, yet a comparison of their statement, with that of appellant, shows that there is no substantial difference upon the issues to be determined here. There is practically but one real issue presented by the record and assignments of error herein. Appellant's statement sufficiently states the case, and we adopt it, barring legal conclusions therein, if any such there be. The statement reads:

"This is an appeal from a judgment against the city of St. Louis for damages alleged to have been caused to plaintiffs' property by the grading of Prather Avenue, on which the property abuts.

"Defendant takes the position that the matter involved in this suit is res adjudicata, for the reason that a condemnation suit was brought by the city to change the grade of Prather Avenue adjacent to plaintiffs' property; that final judgment was entered in said suit; that plaintiffs did not appeal from said final judgment, and that plaintiffs have paid the city the amount of benefits assessed against their property under said judgment. Defendant, in its answer, set up the plea of res adjudicata, but the court below on motions of the plaintiffs, ordered this plea to be stricken out, and, during the trial of the case, the court below excluded defendant's evidence concerning the prior adjudication.

"The record is somewhat complicated by the fact that plaintiffs' property is a corner lot, abutting on Prather Avenue, which is on the west, and on Garner Avenue, which is on the north. At the same time that the condemnation suit for the grading of Prather Avenue was filed, there was also filed a condemnation suit for the grading of Garner Avenue, and plaintiffs herein were parties defendant duly served with process in both of said condemnation suits. Final judgment was rendered on the same day in both of these condemnation suits. In the Garner Avenue condemnation suit, plaintiffs here were awarded damages, which the city paid; and in the Prather Avenue condemnation suit, the judgment was for special benefits to plaintiffs' property, which plaintiffs paid March 12, 1921.

"Six days later, on the 18th of March, 1921, the instant suit was filed.

"Plaintiffs' original petition alleged that the damages and benefits for the grading of Prather Avenue were determined by commissioners in the...