City of Moberly v. Hassett, 127 Mo. App. 11

City of Moberly v. Hassett

127 Mo. App. 11 | Mo. Ct. App. | 1907

ELLISON, J.

This is an action on a special tax-bill issued for paving Williams street in the city of Moberly with vitrified brick. The judgment in the trial court was for the plaintiff.

*14The principal point against the judgment is the Statute of Limitations. It appears that on the 16th of M'ay, 1892, the city council of Moberly adopted a resolution declaring it to be the sense of the council that Williams street be paved. The resolution was duly published. Afterwards, on the 9th day of July, 1892, an ordinance was passed for the paving. The relator’s bid was accepted and the city entered into a written contract with him to issue taxbills for the paving, and the paving was completed and accepted on the 15th day of December, 1892, when special taxbills were ordered to be issued according to law. In pursuance of said order the city engineer on the 15th day of December, 1892, issued and- delivered to relator what purported to be special taxbills for doing said paving, purporting to be issued by virtue of an ordinance assessing and levying a special tax for’ said work when in truth and in fact no such ordinance had been passed. That when said taxbills on their face purported to fall due, viz: one-third after one year, one-third after two years and one-third in three years from date and when the last of said bills fell due the relator undertook by process of law to collect them, when it first developed that there had been no levy made to collect the tax, and on September 24, 1897, relator took a nonsuit, and after-wards on the 21st day of December, 1898, the city passed an ordinance assessing and levying said special assessment against the property for the payment of said pavement and issued the taxbills here sued on.

The statute (section 4273) reads that “all actions upon contracts, obligations or liabilities,” and “an action upon a liability created by statute,” shall be begun within five years after the cause of action shall have accrued.

The right of the relator that taxbills be issued to him was a “liability created by the statute,” or was, at least, a contract or obligation against the city. It was *15therefore subject to the five-year period of limitation. [Connoyer v. La Beaume, 45 Mo. 139; Turner v. Burns, 42 Mo. App. 94; Brady v. St. Joseph, 84 Mo. App. 399.] In the case of Bank v. Ridge, 79 Mo. App. 34, five years had not elapsed. His right to the taxbills accrued the 15th of December, 1892, and the bills upon which this action is brought were not issued to him until the 21st of December, 1898. This was more than five years from the time his right to them accrued and heneé his right was barred. He might at any time have compelled the city to issue the tax bills or have taken measures to levy the tax against the property liable. [Brady v. St. Joseph; supra.]

It is no answer to say that relator could not sue for the reason that the city did not issue proper bills until December, 1898, and that he began this action within five years of that date. For he might at any time have taken measures to compel the city to issue proper bills. [Kirwin v. Nevin, 111 Ky. 682, 687; Innes v. Drexel, 78 Iowa 253; see also Bauserman v. Blunt, 147 U. S. 647, 658, 46 Kan. 480.]

It may be suggested that the obligation to issue the taxbills was the city’s obligation and hence this defendant has no right to interpose the Statute of Limitations when sued on the bills. It is true that a plea of the statute is personal to the party owing the obligation and no other can plead it for such party. But where the party interposing the plea is the real party in interest he may do so. [U. S. v. Beebe, 127 U. S. 338; Moody v. Fleming, 4 Georgia 118.] In such case he should not be regarded as a third person to the controversy.

Considering the bills to be barred, it follows that we should reverse the judgment and it is so ordered.

All concur.