Wegenka v. City of St. Joseph

• Decision Date: 07 April 1919
• Docket Number: No. 13193.,13193.
• Citation: 212 S.W. 71
• Parties: WEGENKA v. CITY OF ST. JOSEPH et al.
• Court: Missouri Court of Appeals

212 S.W. 71

WEGENKA v. CITY OF ST. JOSEPH et al.

No. 13193.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by Anna Wegenka against the City of St. Joseph and others. From order modifying temporary injunction, plaintiff appeals. Affirmed.

Sterling P. Reynolds, of St. Joseph, for appellant.

Charles L. Faust and John E. Dolman, both of St. Joseph, for respondents.

TRIMBLE, J.

The city of St. Joseph, by proceedings appropriate for that purpose, ordered Olive street to be paved from Fifteenth to Twenty-Sixth street, a distance of 11 blocks, the work to be paid for by special tax bills on the abutting property. The Metropolitan Paving Company was awarded the contract, and began the work, and, it seems, has nearly performed it, but has not quite completed it, as we gather from the allegations in plaintiff's petition.

Charging that the city, the city engineer, and the board of public works were about to issue the special tax bills for the paving of the street between the points named, the plaintiff brought an injunction suit to prohibit the issuance in any manner of any special tax bills on account of said paving from the first of said points to the other on said street, and to prohibit the delivering of said tax bills to said Metropolitan Paving Company or to any one. The city and the abovenamed officers were made parties, but the paving company was not. One ground of the injunction sought, among others, was that the pavement was not constructed according to the required plans and specifications in a number of specific particulars.

Upon this petition, and the ex parte showing made by plaintiff, the court issued a temporary injunction enjoining the issuance of all the tax bills against the abutting property for the entire 11 blocks.

The petition, on its face, showed that the Metropolitan Paving Company was the real party interested and a necessary party to the suit. No demurrer on the ground of a defect of parties defendant was filed, but, instead of this, the Metropolitan Paving Company filed a motion asking to be made a party defendant, which the court sustained. To this the plaintiff made no objection and saved no exception.

Thereafter the city and the Metropolitan Paving Company filed answer, and also filed a joint motion to dissolve said temporary injunction on the ground that the same was improvidently issued, that the court had no authority to grant said injunction, and that the granting thereof was contrary to law.

The court considered the motion, but no evidence was offered thereunder; the consideration not extending beyond the face of the pleadings and the hearing of arguments of counsel.

The petition showed on its face that injunction was sought to prohibit the issuance of all tax bills on all the abutting property for the entire 11 blocks, and the temporary injunction prohibited the issuance of all such bills. But the petition also showed that plaintiff owned only three lots in the abovementioned territory, with a total fronting of only 141 feet, and was not interested in any other of said property.

The court, on the hearing of said motion, found that plaintiff was not entitled to a temporary injunction except as to the tax bills against the property owned by plaintiff, and therefore modified the temporary injunction by limiting it to those assessed against the three lots owned by plaintiff, and directed that plaintiff file an injunction bond to the city and the paving company in the sum of $500.

From this order modifying the temporary Injunction, which was in effect a dissolution of the injunction as to the tax bills on the other property in which plaintiff was not interested, the plaintiff prosecutes this appeal.

It is contended that the court erred in admitting the paving company as a party to the suit upon its own application. If such be an error, it is one that cannot be taken advantage of, since no objection nor exception was saved. Mulherin v. Simpson, 124 Mo. 610, 28 S. W. 86; Kansas City ex rel. v. Schroeder, etc., Surety Co., 196 Mo. 281, 300, 93 S. W. 405. However, it would seem that the paving company was the only one really interested in the outcome of the suit; and the real party in interest may be made a party defendant on his own application whenever such interest is made to appear to the court. State, to Use, v. Hudson, 86 Mo. App. 501, 509; Green v. Conrad, 114 Mo. 651, 21 S. W. 839; Valle v. Cerre, 36 Mo. 575, 88 Am. Dec. 161; State ex rel. v. Allen, 124 Mo. App. 465, 476, 103 S. W. 1090; same case on second appeal, 132 Mo. App. 98, 102, 111 S. W. 622.

Appellant complains of the court's action in modifying the temporary injunction, the ground of this complaint being...