Wayland v. Kansas City

• Decision Date: 18 December 1928
• Docket Number: No. 26380.,26380.
• Citation: 12 S.W.2d 438
• Parties: MARY WAYLAND v. KANSAS CITY ET AL., Plaintiffs in Error.
• Court: Missouri Supreme Court

12 S.W.2d 438

MARY WAYLAND v. KANSAS CITY ET AL., Plaintiffs in Error.

No. 26380.

Supreme Court of Missouri. Division Two.

December 18, 1928.

Writ of Error to Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

REVERSED AND REMANDED.

Marcy K. Brown, Jr., and W.D. Bush for plaintiffs in error.

(1) Even had the execution not been issued within ten years, the judgment being a condemnation judgment, it is regulated by the legislative act, Laws 1919, page 221, which provides that an execution may be issued on a condemnation judgment until two years after the last installment becomes due and payable, and default in the payment of any prior installment shall not shorten the time within which such execution may be issued. Under this act, Section 1341, Revised Statutes 1919, no longer applies to a condemnation judgment. Sec. 1336, R.S. 1919; Wood v. Messerly, 46 Mo. 255; Chenault v. Yates, 216 S.W. 817; Clark v. Railroad, 219 Mo. 524. (2) Even though the Act of 1919 were not applicable, the record shows that a condemnation judgment was rendered April 19, 1913, and that execution on that judgment was issued and delivered to the sheriff March 23, 1923, and that levy was made thereon April 4, 1923, all less than ten years from the date of rendition of said judgment, and the court therefore erred in finding for plaintiff because as a matter of law the execution remains in full force and effect as a process of the court issued in due time, until the completed execution of such process, and the lien of the completed levy made April 4, 1923, continues in force until the sale. Secs. 1564, 1659, R.S. 1919; Bank v. Wells, 12 Mo. 361; Durrett v. Hulse, 67 Mo. 201; McDonald v. Gronefeld, 45 Mo. 28; Riggs v. Goodrich, 74 Mo. 108; Huff v. Morton, 94 Mo. 405; Goddard v. Delaney, 181 Mo. 564; Lafayette County v. Wonderly, 92 Fed. 313; Mill Company v. Sugg, 206 Mo. 148, 169 Mo. 130; Kansas City v. Field, 270 Mo. 500; Burton v. Deleplain, 25 Mo. App. 376. (3) The petition of Mary Wayland for an injunction did not state facts sufficient to constitute a cause of action for the reason that a court of equity cannot enjoin an execution sale under a void judgment where the invalidity of the judgment appears of record, and the judgment of injunction is therefore void. Rookery Loan Co. v. Johnson, 294 Mo. 461; Marsala v. Gentry, 232 S.W. 1046. (4) Where findings of fact are incorporated into and made a part of a judgment no exceptions are necessary to authorize a review of the conclusions of law reached by the trial court upon the facts found. The findings stand as a special verdict or decreed case, and unless the conclusions of law upon the facts are correctly pronounced, the judgment must be reversed. Watson v. Kerr, 287 S.W. 337; Blount v. Spratt, 113 Mo. 48; Rannells v. Isgrigg, 99 Mo. 19; Gage v. Gates, 62 Mo. 412; Sutter v. Streit, 21 Mo. 157; Munford v. Wilson, 15 Mo. 540; Steele v. Johnson, 96 Mo. App. 147; Hill v. Combs, 92 Mo. App. 242; Freeman v. Hemenway, 75 Mo. App. 617; Brown v. Appleman, 83 Mo. App. 79.

BLAIR, J.

Error to the Circuit Court of Jackson County in two cases, which were consolidated in the trial court. Each case involved the validity of the judgment in a condemnation suit in favor of Kansas City against lots 3, 4 and 5, in block 6, in William Parish's Subdivision in and to Kansas City, Missouri. The amount of said judgment, with interest accrued thereon from date of rendition to date of the judgment of the trial court in the cases at bar, fixes our appellate jurisdiction.

On April 19, 1913, Kansas City secured a judgment in the Circuit Court of Jackson County for benefit assessments for the extension of Linwood Boulevard, as follows: Against lot 3, $1,291.83; against lot 4, $1,470.36, and against lot 5, $1,470.36. Judgments against other lots and parcels of land were rendered in the same proceeding.

On March 12, 1923, which was within ten years after rendition of such judgment, defendant in error filed suit against Kansas City (plaintiff in error) in the Circuit Court of Jackson County (case No. 185,153). Her petition alleged that she was the owner of said lots; that on April 19, 1913, Kansas City obtained a judgment against said lots for the purpose and in the sums aforesaid, that said judgment had been paid and that satisfaction should be entered of record. The prayer was that the court should cancel said judgment and enter satisfaction of record thereon.

On March 23, 1923, the Clerk of the Circuit Court of Jackson County issued and delivered to Fred A. Richardson, sheriff of said county, a special execution on said judgment against the lots here involved and other real estate. Thereupon said sheriff levied upon said lots and advertised them for sale on May 2, 1923. On May 1, 1923, defendant in error filed suit in the Circuit Court of Jackson County against Kansas City and Sheriff Richardson. This was case No. 186,348. The petition recited the facts about the rendition of the judgment of April 19, 1913, the insurance of execution thereon and the levy upon and advertised sale of said lots. It was alleged that said judgment had not been revived and was conclusively presumed to be paid and was no longer a lien against said lots; that the sheriff had no right to sell said lots under the special execution issued on said judgment, which he was about to do. The prayer of the petition was for an injunction to prevent said sheriff from selling said lots.

Thus there were two cases pending — one to have the judgment of April 19, 1913, canceled and satisfied of record, and the other to enjoin the sale of the lots under execution issued on said judgment. By agreement the two cases were consolidated and tried together. On November 24, 1923, the Circuit Court of Jackson County made a finding that no payment had ever been made on the judgment of April 19, 1913, and that the same had never been revived and that, under the laws of the State, said judgment was conclusively presumed to have been paid and satisfied and that said judgment was not a lien against said lots at the time of the attempted sale of said lots under the special execution issued thereon. Accordingly, the trial court rendered its judgment whereby said special execution was quashed and defendant Kansas City and Sheriff Richardson were perpetually enjoined from proceeding to sell said lots under said special execution.

On November 15, 1924, which was within one year after said judgment of November 24, 1924, was rendered, defendant Kansas City, as plaintiff in error, petitioned for and sued out of this court its writ of error in said consolidated cases. Notice of the issuance of such writ of error was timely served on defendant in error by said city as plaintiff in error.

Defendant in error has filed her motion to quash the writ of error, and the disposition of said motion is the first question for consideration. The grounds of the motion are, first, that only one of the two defendants below has joined in the issuance of the writ of error and only one has served the statutory notice upon defendant in error and, second, that no motion for new trial was filed below and only the record proper is before this court and the writ should be quashed because no errors appear on the face of such record proper. The last ground of the motion goes to the merits of the case and will be considered later, if we conclude that plaintiff in error is properly in court on its writ of error.

Sheriff Richardson, who was a party defendant in the injunction suit below, is still living, of sound mind and a resident of this State, according to the allegations of the motion to quash, and did not join in the petition for or the issuance of the writ of error or in the notice to defendant in error of such issuance. Defendant in error contends that such non-joinder is fatal to the proceeding here and hence the writ of error should be quashed. Section 1489, Revised Statutes 1919, is as follows:

"If there be several persons against whom any judgment shall have been recovered and entitled to bring a writ of error thereon, living at the time of bringing such writ, they shall all join in such writ, except where it is otherwise provided by law; and if any are omitted, the writ shall be quashed on motion of the defendant in error, made at any time before submission upon due proof of the facts by affidavits, unless one or more of such persons be allowed to proceed by the Supreme Court or Court of Appeals."

The only case cited by defendant in error is Kelmel v. Nine, 121 Mo. App. 718, l.c. 720, 97 S.W. 635. In that case a writ of error was sued out of the Kansas City Court of Appeals by only one of several defendants, against whom judgment was obtained in the circuit court. Defendant in error in that case filed her motion to dismiss the writ of error because the Court of Appeals had no appellate jurisdiction of the case, contending that it involved title to real estate, and because only one defendant joined in the writ of error and no notice of the issuance of such writ was served on defendant in error. The motion to dismiss was apparently sustained on all grounds. Among other things BROADDUS, P.J., said: "The writ will be quashed because only one of the defendants applied for the same and no reason assigned why the others have not joined in the application therefor." The nature of the interest in the land claimed by the defendants who did not join in the writ of error does not appear from the published opinion.

Section 1490, Revised Statutes 1919, authorizes the prosecution of a writ of error without joining as plaintiff in error one who is incapable of consenting to such joinder by reason of insanity or imbecility of mind or absence from the State. The Sheriff of Jackson County does not come within this exception; nor does it appear that he had refused to join in the writ of error, so that plaintiff in error could invoke the provisions of Sections 1491 to 1495, Revised Statutes 1919,...