| Mo. | Mar 12, 1895
This is a somewhat peculiar proceeding, growing out of a condemnation suit to enforce a city ordinance for the grading of Kansas avenue in Kansas City, Missouri.
There is no question as to proper parties, or of the regularity of the early steps in the suit.
A judgment was reached, April 27,1892, by which the damages and benefits were determined, as between the parties then before the court.
Afterwards a special execution against the reaproperty of Mary R. Bryant was -duly issued by the circuit court to enforce the assessment for benefits against said property. The execution was returnable to the April-term, 1893. In January of that year, after the usual notice, the property charged with the benefits was regularly sold to satisfy the execution; but no deed was actually made because of the events which followed.
The appellant, Mr. Russell, was the purchaser at that sale.
Within a few days thereafter, Mary R. Bryant filed a motion to quash the execution and for leave to redeem her land, having tendered to the sheriff the necessary funds for that purpose; and then paid them into court to confirm her offer to redeem.
That motion is the matter now before us for review. The trial court sustained it, and allowed her to redeem the property, upon payment of the full amount (with interest) then due, according to the provisions of the city charter.
The purchaser at the sale, who had been duly notified of the motion, resisted it; and, upon the ruling sustaining it, brought the present appeal, after the usual exceptions and motion to obtain a different result in the trial court.
There are some minor points of alleged error, which will be considered in due course.
1. The defendant in the motion claims that he acquired title to the land by his purchase at the- execution sale. The moving party denies this claim, relying on her supposed right to redeem. The existence or nonexistence of this right substantially determines the question of title to the land. - Hence the issue involves title, and comes within the jurisdiction of this court, defined by the constitution, as interpreted by former rulings on that subject. Constitution, 1875, art. 6, sec. 12; Gardner v. Terry (1890), 99 Mo. 523" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/gardner-v-terry-8009703?utm_source=webapp" opinion_id="8009703">99 Mo. 523; Nearen v. Bakewell (1890), 40 Mo. App. 625" court="Mo. Ct. App." date_filed="1890-04-15" href="https://app.midpage.ai/document/nearen-v-bakewell-8260039?utm_source=webapp" opinion_id="8260039">40 Mo. App. 625, and (1892), 110-Mo. 645.
2. The leading contention to support the appeal is that no right to redeem, as against a sale on special execution for “benefits” in grading cases, is conferred by the revised charter of 1892 of Kansas City, on the terms of which the trial judge placed his ruling. Counsel for appellant argue that the amendments to the original freeholders’ charter, which were made in 1892, do not have the effect which the trial court has ascribed to them in respect of the topic of the present dispute.
The freeholders’ charter became the organic law of Kansas City in 1889, pursuant to authority contained in the constitution of 1875 (art. 9, sec. 16).
Under the provisions of the latter, the original charter, once adopted, became subject to amendment in the mode pointed out by the constitution.
It is not now contended that the procedure followed in making the amendments of 1892 was irregular. The contention is that section 9 of article 8 of the original
The amendments of 1892 purported to repeal some sections of article 8 of the charter of 1889, by inserting other sections instead. Section 9 of that article (8) was not expressly altered. Nor did any of the new sections of article 8 refer to a right to redeem against sales for “benefits.”
But in the amendments to article 9 appears some new matter which bears on the present controversy. That article originally dealt with general public improvements, streets, sidewalks, sewers and special tax bills. It is very long, as are the amendments. We shall not quote either in full. It will be sufficient to quote some parts of the new matter introduced by the. amendments to be construed.
The amendment to section 17 of article 9 prescribes steps to be taken for the public record, collection and payment of special tax bills for street improvements, etc. It requires the city treasurer to keep a “special tax record,” and adds:
“Such record shall be complete and full and show all special tax bills, if any, issued under this charter and all benefit assessments arising out of condemnation and grading cases made under the provisions of articles YII and YIII, respectively, of this charter which may be in his hands for collection against any lot or parcel of land in Kansas City. Any and all special
Further along in the same amendment of section 17 of article 9 appears the following:
“The common council may, by ordinance consistent with the provisions of this charter, further regulate the keeping of the records by the city treasurer of special tax bills and benefit assessments against private property arising out of the provisions of articles YII and YIII of this charter, and the collection of such assessments by execution and sales of the private property against which the same may be a lien.77
The amendment to section 18, of article 9, provides generally for the collection and enforcement of special tax bills. In directing the mode of proceeding, it declares that, upon rendition of judgment on those tax bills, “a special execution shall issue to sell the land to pay any such judgment, interest and costs.77
It further provides that “upon sales made by the sheriff under any such special execution, he shall issue to the purchaser a certificate of purchase, setting forth the substance of such special execution, the date of sale, the purchaser, the property sold, and the amount bid. If the property so sold be redeemed within one
One position taken by appellant is that the language above quoted does not confer a right to redeem in respect of sales to enforce judgments for “benefits,” but only in regard to special tax bills for the improvement of streets after the latter have been acquired and graded.
We hold, however, that the terms of the amended section 17 of article 9, were intended to apply the charter provisions governing the collection and “receiving payment” of special tax bills to assessments for benefits in grading eases.
The right of redemption is an important feature of the present charter provisions governing the “collecting and receiving payment” of those tax bills, and, as such, it is made applicable to the collection of assessments for benefits such as are under consideration.
It is true that there is no express grant of the right of redemption as to these benefit assessments -r
The vitality of a statute is its intent, and where the latter is plain the court should give it effect. What is within the clear meaning and implication of an enactment is as much a part of it as its very letter.
3. It is next asserted that as the charter amendments of 1892 do not, by their terms, mention section 9 of article 8 of the freeholders’ charter, that that section can not properly be considered qualified or repealed to any extent by the later amendments.
It is true that that section was, nominally, left untouched by the amendments. But if the latter dealt with the same subject, by amending another section, the effect would be the same as though section 9 of the eighth article had been in terms altered.
It is a general rule of consti’uetion of laws that a later statute, covering the subject-matter of a former one, will repeal it to the extent that they conflict, whether any reference is made by the later to the older ■statute or not.
This rule has some qualifications, but none that impair its bearing upon the ease in hand.
4. Next, it is urged that the motion to be allowed to redeem against the sale for “benefits” was premature. The special execution was returnable to the April term, 1893; but the motion was made in January of that year, a few days after the sale.
A court can usually control its own process. It was not bound to wait until the April term before acting on the motion for leave to redeem.
The purchaser at the sale had notice of the motion, came in and opposed it.
The right to redeem might have been exercised at any time “within one year from the date of such
No motion was, in fact, essential, unless the sheriff declined to receive the payment, or the intervention of the court became, in some way, necessary to give the party the full benefit of the right of redemption afforded by the charter. It was, however, entirely competent for the court to act in the matter on being seasonably invoked to decide whether the right to redeem existed.
The motion actually filed was to quash the special execution and to allow the moving party to redeem. There was no need to quash the execution. - The right to redeem existed, irrespective of the standing of the execution. The trial court might have- declined to sustain the motion because it asked specifically for too large an order. But the action of the court in granting it, and thereby quashing the execution (so far as it related to the Bryant property) was not prejudicial to any substantial right of the purchaser, if the owner of the property had the right to redeem, as the trial court held she had, and as we now hold. The circuit court required the moving party to pay her proper proportionate share of the costs of the original proceeding, as well as the “benefits,” with interest, and made no order as to the costs of the motion to redeem. We shall correct that oversight here, in such a way as to avoid any possible detriment to the appellant.
But no prejudice to the purchaser could have resulted from that part of the court’s ruling, in the circumstances. It was a harmless error, at worst, and can furnish no substantial basis for a reversal. E. S. 1889, secs. 2100, 2303.
In permitting the exercise of the right to redeem, the trial court was clearly right, and its action should be sustained. That was the vital part of its ruling. Some motion was needful in the caseto secure a recogni
We think that a fair and reasonable construction of the charter provisions already quoted permits the redemption of land (sold to satisfy such charges) as a part of the original proceeding. This is evidently contemplated by those provisions. They provide that the lien thereof shall be satisfied of record “upon presentation of the receipt of the sheriff for the amount necessary for redemption.”
If the officer declines to accept a sufficient tender, it certainly is proper to go into a court, having control of the process, to obtain an order suspending the further execution of the process upon so showing. That should have been the order in this case, but the variation from it is neither material nor substantial, on the facts disclosed.
5. In this connection it is insisted that the motion should have been overruled because it was an effort to obtain equitable relief in a statutory, or law, action.
Under our system of jurisprudence, the circuit court, in a statutory proceeding such as this, has jurisdiction, upon motion, to regulate or control the use of its own writs, so as to see that no injustice is done thereby, and that effect be given to a right of redemption, conferred by positive law, as to sales under its judgments.
The court need not, in such a case, send the moving parties away to begin a new suit in the form of a bill in chancery; but, by exerting its power over its own
Whether the jurisdiction to so act upon motion is properly classified as legal (Gillespie v. Rout (1866) 39 Ill. 247" court="Ill." date_filed="1866-01-15" href="https://app.midpage.ai/document/gillespie-v-rout-6951766?utm_source=webapp" opinion_id="6951766">39 Ill. 247) or equitable, we do not pause to consider. It springs from the court’s power to control its own action, in pending proceedings, so as to subserve the ends of justice. We think the use of that power in the present instance was proper, and called for by the facts shown.
6. There need be no question of the right to appeal from the action of the circuit court on the motion. The statute of 1891 (Laws, 1891, p. 70) gives a right to appeal “from any special order after final judgment in the cause.” This is broad enough language to confer the right, if it did not already exist. Whether it did or not is but a moot question now.
7. We have considered all the objections urged to the action of the trial court upon the motion; and finding none of them substantial, we affirm the judgment, at the same time adjudging that the costs of the^ motion in the circuit court (including the order of the court upon it) be taxed against the moving party; but, from that point of the litigation, beginning with appellant’s motion on the circuit to set aside the court’s order permitting Mary R. Bryant to redeem, the costs are to be taxed against appellant. (R. S. 1889, secs. 2921, 2304).