Williams v. Van Deusen

• Decision Date: 26 January 1920
• Docket Number: No. 12817.,12817.
• Citation: 219 S.W. 395,203 Mo. App. 162
• Parties: WILLIAMS v. VAN DEUSEN et al.
• Court: Missouri Court of Appeals

219 S.W. 395

203 Mo. App. 162

WILLIAMS v. VAN DEUSEN et al.

No. 12817.

Kansas City Court of Appeals. Missouri.

January 26, 1920.

On Motion for Rehearing. March 20, 1920.

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

Suit by Willis Williams against R. W. Van Deusen, A. W. Van Hafften, and others to cancel a series of tax bills. Judgment for plaintiff, and defendant Van Hafften appeals. Affirmed.

John E. Dolman and 0. E. Shultz, both of St. Joseph, for appellant.

Graham & Silverman, of St. Joseph, for respondent.

TRIMBLE, J.

This is an action in equity to cancel a series of five installment tax bills, for paving a highway in St. Joseph, assessed as liens against a lot alleged to be owned by the plaintiff. The chancellor's decree directed the bills to be canceled and the apparent lien removed, whereupon the holder of said bills, A. W. Van Hafften, appealed.

The proceedings under which the improvements were authorized and the contract let are those which were involved in the case of McQueen v. Van Deusen, 189 Mo. App. 492, 176 S. W. 1057. That suit was instituted after the contract had been signed and the work begun; but upon its institution and during its pendency all work ceased, and nothing was done till after the final determination of that case in this court, whereupon the contractor proceeded to finish the work. The question involved in that suit was the validity of the ordinance authorizing the improvement of a highway which, although composed of parts of various streets dedicated under different names, was in reality, on account of the topography of the territory, one continuous highway and thoroughfare, so recognized and treated by the public and the city in its use and control of the same for more than ten years; the contention being that the city could not in one proceeding improve, as one continuous highway, a thoroughfare made up of parts of several streets dedicated under different names.

A number of grounds were urged in the present action against the validity of the bills, but as only one of them was upheld we need not consider the others. That one was that the work was not completed within the time prescribed by the ordinance.

The contract was awarded September 24, 1914, and gave the contractor 130 days in which to complete it. The contract was signed on September 30, 1914; work was begun October 3, 1914; but upon the institution of the injunction suit of McQueen v. Van Deusen aforesaid, on October 7, 1914, the work ceased until that case was finally determined in May or June, 1915. Thereupon work was resumed and the improvement completed about November 1, 1915.

Pursuant to section 8840, R. S. 1909, the ordinance authorizing the work contained a provision saying the work was to be completed in 130 days after the contract was awarded, but providing that—

"The time fixed for the completion hereof shall be extended for such length of time as the contractor may be actually and necessarily prevented from pursuing said work by reason of bad weather, a general strike * * * or injunction against him."

The answer set up the injunction in the McQueen Case as a defense to the charge that the work was not done in time. The reply charged that—

The injunction "was procured at the instance and through the instrumentality of said contractor and for the purpose of stopping said work, and said injunction so procured does not operate to extend the time."

The chancellor found that after said contract had been entered into the contractor procured, instigated, and caused said injunction suit to be brought in the name of Lizzie McQueen to prevent the performance of the work, and that said contractor maintained said suit through all its stages; that he had no legal interest in said injunction suit, as he had already entered into a valid contract prior to the institution of the said suit—

"and the sole purpose of said Van Deusen in procuring and maintaining said injunction suit was to obtain a judicial determination of the question as to the validity of the said ordinance and contract, which question was in effect a moot question, since the suit was not brought for the purpose of avoiding the contract, but merely to find out and determine whether the contract was good or not—a decision either way fully satisfying the purpose of the suit—and that but for the interference and maintenance on the part of the [contractor] said injunction would not have been brought."

The court further found that

"The time in which said work was required to be completed, as required by said contract aforesaid, was not extended for the period daring which said injunction suit was maintained as aforesaid, and that by reason thereof said work was not completed within the time provided for in said contract, and that because of such failure to complete said work within the time provided in said contract the tax bills described in plaintiff's petition are null and void and of no force and effect."

There is no question but that the contractor did instigate and maintain the Mc-Queen suit. It was not done, however, in any corrupt or fraudulent motive, nor for the purpose of securing delay. The record discloses that it was the general opinion in legal circles that the ordinance was void because it sought to combine parts of several streets into one improvement. And the purpose of the McQueen suit was to find out whether the ordinance, or such an ordinance, was valid. It was a friendly suit brought in the name of a property owner against the contractor and the city to determine the validity of such a proceeding; it being a public question which the city and contractors generally therein were interested in having settled, several other similar ordinances having been passed under which contractors had refused to bid on account of said question as to their validity. The city, through its city counsellor, defended the suit both in the trial and appellate courts. No extension was formally applied for, nor was any granted by the legislative authorities of the city. The contractor merely consulted a member of the St. Joseph bar, who informed him that the way to test the question was to have a property owner bring a suit, and thereupon the contractor secured for the attorney the name of Lizzie McQueen and the suit was brought; the city counsellor defending it and the contractor paying the attorney his fee for carrying on the case.

Appellant contends that the facts do not bring the McQueen Case within the strict definition of a moot case. If we understand his position, it is that as Lizzie McQueen had a legal right, as a property owner, to question the validity of the ordinance, and the city was interested in upholding its validity, there were antagonistic interests present in that case and on opposite sides of a real and important public question involved therein; and that the presence of these antagonistic interests over a real question was sufficient to keep the case from being a moot one, even though such property owner's interest would not have been asserted but for the instigation and support of the contractor. Appellant's position is, furthermore, that there was no fraud, collusion, nor purpose to secure delay in the prosecution of the work.

The chancellor did not find the McQueen Case to be strictly a moot case, but that it was so "in effect." And the question is not whether the facts bring it within the strict legal definition of a moot case, but whether they are such as to give rise to practically the same results as if it were. It is beyond doubt true that a real question existed, but was there a real and substantial controversy between the parties plaintiff and defendant in the McQueen Case? Was it instituted and maintained to redress a grievance of plaintiff, or merely to settle a question of law for the benefit of the two defendants and upon which they, and they alone, desired information? No interruption of the work was brought about through any attempt upon Lizzie McQueen's part to assert and protect her rights, as no such suit would have arisen but for the procurement thereof by the contractor. He put forward the plaintiff to make a fight nominally in her own behalf, but in reality it was he himself fighting himself to obtain a decision upon a question which he, and perhaps his...