JULIA TIPTON HEATHER v. CITY OF PALMYRA et al., Plaintiffs in Error.
SUPREME COURT OF MISSOURI, Division One
October 9, 1925.
311 Mo. 32
Heather v. City of Palmyra.
It follows from what we have herein said, that the judgment nisi should be reversed and the cause remanded for further proceedings not inconsistent with our conclusions herein expressed, and it is so ordered. Lindsay, C., concurs.
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur, except Woodson, J., absent.
JULIA TIPTON HEATHER v. CITY OF PALMYRA et al., Plaintiffs in Error.
Division One
October 9, 1925.
- JURISDICTION: Change in Judicial Circuits: Acts of 1921. The Act of 1921, passed at the regular session of the General Assembly, abolishing the then judicial circuits, was suspended under the referendum provisions of the Constitution, and the subsequent act on the same subject, passed at the special session held in 1921 before the election under the referendum provisions, was non-effective, and Article 3 of Chapter 21 of Revised Statutes 1919 were in force when a judgment was rendered against defendant in the Circuit Court of Macon County in December, 1922, and said circuit court had jurisdiction of a cause which was begun in Marion County in 1921, taken by change of venue on plaintiff’s application to Monroe County, and from there by change of venue upon defendant’s application to Macon County.
- EXECUTION: Returnable in Vacation. The judgment for money being valid, a writ of execution made returnable in vacation is merely erroneous and if returned to the next succeeding term cannot be quashed for the error.
- ———: Motion to Quash: Change of Venue. A motion to quash an execution is not a suit within the meaning of the statute (
Secs. 1182 ,1357, R. S. 1919 ), and the judgment debtor is not entitled to a change of venue on a hearing of his motion to quash. MANDAMUS: Change of Venue. Final judgment in a damage suit having been rendered against a city, and execution having been issued and returned wholly unsatisfied, said defendant city is not entitled to a change of venue in a mandamus suit brought in the same court by the plaintiff to compel the city and its officers to make a levy of taxes to pay the judgment, where the right to change the venue has been exhausted by successive changes already granted to each of the parties in the main suit. The mandamus is merely ancillary to the main suit, and is a substitute for the unavailing process of execution against the city, and a right to a change of venue is purely statutory, and does not exist where the right to a further change has already been exhausted. - ———: Amendment of Alternative Writ. Where judgment for damages has been rendered against a city, and mandamus has been brought to compel the city and its officers to make a levy of taxes to pay it, the court does not err in permitting the plaintiff to amend the alternative writ by substituting two persons as members of the city council who have been elected successors of two others whose terms have expired.
- ———: Tax Rate: By Cities Under Special Charter: Act of 1921: Ten Per Cent Increase. None of the acts of 1921, prohibiting a greater increase than ten per cent in the levy of taxes for any one year over the levy of the preceding year, applies to a city under a special charter whose population is between one thousand and ten thousand inhabitants; and in a mandamus suit to compel such a city and its officers to make a levy of taxes to pay a monetary judgment rendered in favor of relator, the court can compel a levy of fifty cents on the hundred dollars, each year until the judgment is paid.
- ———: Estoppel: Assessment of Judgment for Taxes. The relator obtained a valid judgment against the city for damages, and brings suit to compel the city and its officers to make a levy of taxes to pay it. In her petition she alleges that the city attempted to add the amount of said judgment to her assessment, as a part of her property returnable for taxation, and she alleges that the city was thereby estopped to challenge the validity of the judgment, and these allegations, on motion of respondents, the court struck out. Held, that, the judgment being clearly valid and legal on other grounds, and its validity in no wise dependent upon estoppel, the point, whether the trial court erred in sustaining the motion, is of no importance on respondents’ appeal from judgment for relator.
- ———: Motions for New Trial and in Arrest: Stricken from Files: No Exception. An assignment that the trial court in the man-
damus suit erred in striking from the files the motion for a new trial and the motion in arrest of judgment filed by plaintiff in error is not for consideration, if the abstract shows no exception taken to the action of the court in striking them out. - ———: Bonded Indebtedness: Amount of Tax Levy to Pay Judgment. Whether the bonded indebtedness of the city was authorized by Section 11 or Section 12 of Article X of the Constitution, if the city is one existing under a special charter and its population is between one thousand and ten thousand inhabitants, it can be compelled by mandamus to make an annual levy of fifty cents on the hundred dollars, each year so long as necessary, to pay a valid monetary judgment against the city, and no provision of the Constitution and no statute inhibits such levy.
Corpus Juris-Cyc. References: Courts, 15 C. J., Section 224, p. 878, n. 3. Evidence, 23 C. J., Section 1882 p. 91, n. 47; Section 1987, p. 161, n. 80; p. 162, n. 84. Executions, 23 C. J., Section 864, p. 793, n. 98. Mandamus, 38 C. J., Section 397, p. 762, n. 35, 39; Section 628, p. 899, n. 73; Section 634, p. 905, n. 55; Section 668, p. 913, n. 39; Section 746, p. 946, n. 40. Municipal Corporations, 28 Cyc., p. 1640, n. 15; p. 1659, n. 7; p. 1660, n. 19; p. 1667, n. 66; p. 1701, n. 55. Venue, 40 Cyc., p. 117, n. 18; p. 121, n. 70, 85.
Appeal from Macon Circuit Court.—HON. VERNON L. DRAIN, Judge.
AFFIRMED.
J. F. Culler for plaintiffs in error.
(1) The court erred in finding that the judgment upon which the writs of mandamus were issued was a valid judgment, for the reason that said judgment was void because the court in which it was rendered was without jurisdiction of either the parties or the subject-matter in the cause. Laws 1921, p. 244; Laws 1921, Ex. Sess. p. 50 et seq.; Laws 1923, p. 140 et seq., and especially in Section 2. (2) The execution which takes the place of the petition is void because it was made returnable to a day out of term, to-wit, on the second Monday in April, 1923, when, in fact, the April term of the court out of which it issued began on the third Monday in said month.
Glahn & Deimer, Rendlen & White, Berryman Henwood and Matthews & Jones for defendant in error.
(1) The Macon County Circuit Court at its December term, 1921, had jurisdiction both (a) of the parties and (b) of the subject-matter and its judgment was a valid judgment.
LINDSAY, C.—Julia Tipton Heather obtained in the Circuit Court of Macon County a judgment against the city of Palmyra for $7,000, for personal injuries sustained by her, which, upon appeal, was affirmed by the Kansas City Court of Appeals. [245 S. W. 390.] Execution issued thereon and was returned wholly unsatisfied. She then obtained from the Macon Circuit Court a writ of mandamus, requiring the city and its officers to make a levy of taxes for the payment of the judgment.
I. The plaintiffs in error challenge the validity of the original judgment, asserting that the Circuit Court of Macon County was without jurisdiction, either of the parties or of the subject-matter. The question of lack of jurisdiction was not raised upon appeal to the Court of Appeals. The contention here made by plaintiffs in error is based upon the provisions of certain acts of 1921 and 1923. [Laws 1921, p. 244; Laws 1921, Extra Session, p. 50; Laws 1923, p. 140.] These were the acts undertaking to abolish the judicial circuits of the State theretofore existing.
The suit originally was brought to the October term, 1921, of the Circuit Court of Marion County, the court wherein the city of Palmyra is situated. At that term, on application of the plaintiff, the venue was changed to Monroe County, and thence, on application of the city, the venue was changed to Macon County. A trial was had at Macon City at the December term, 1922, of the Circuit Court of Macon County, and the judgment was rendered on February 1, 1922, during said December term. At and prior to the time of the passage at the regular session of the Act of 1921, Article 3 of Chapter 21, Revised Statutes 1919, was in force, and
II. The plaintiffs in error next contend that the execution issued on the judgment was void. An execution against a city returned unsatisfied, forms the basis upon which the writ of mandamus against the city and its officials may issue, under the provisions of
The city, on January 31, 1923, filed its motion to quash the execution. The grounds of the motion to quash were (1) that the Macon Circuit Court was without jurisdiction to render the judgment, and that the clerk of that court was without authority to issue the execution; (2) that the Sheriff of Macon County was without authority to serve the execution; (3) that the city, at prior times, had contracted obligations in the issues of its bonds, and that any order, decree or resolution directing payment of said judgment at that time would impair the obligation of the city’s contract under said bonds, in violation of
Enough has been said already upon the question of the validity of the judgment. The consequent authority of the clerk to issue execution thereon is equally clear. In support of the contention that the execution was void, because it was, upon its face, returnable in vacation, or, one week before the April, 1923, term of court, counsel cite Holliday v. Cooper, 3 Mo. 286. That case has no reference to the issuance of the writ of execution, but treats of the original summons issued upon the filing of the plaintiff’s petition, the object of which was to notify the defendant of the action and the time and place of holding court. The writ there was the original process, a writ requiring the defendant to appear and answer on the fourth Monday of July, while by the law the term of court at which he was to appear was the first Monday of July. The writ was held void as being one “returnable to no term known to the law of the land.” The writ here was final process.
Also, in Estes v. Long, 71 Mo. 605, it was held that an execution issued out of a court of record, and by mistake of the clerk made returnable before the time fixed by law, is not for that reason void, but continues in force until the time when, by law, it is returnable, and a levy may be made at any day before that time. In this case no property was levied upon, nor money paid under the execution. The return was duly made at the succeeding term. The contention of plaintiffs in error upon this point cannot be allowed.
III. In support of the claim that the court erred in denying the application for change of venue of the hearing of the motion to quash the execution, counsel cite State ex rel. v. Dobbs, 118 Mo. App. 663. The case is not in point here. It involved an application for change of venue in a suit pending. Here the proceeding upon the motion to quash the execution was not in a suit within the meaning of
IV. The plaintiffs in error have assigned error in that the court denied the city’s application for a change of venue in the mandamus proceeding. “The right to a change of venue is purely statutory, and does not exist except in those instances where the statute gives them.” [Cole v. Cole, 89 Mo. App. l. c. 233; State ex rel. v. Wofford, 119 Mo. 408; State v. Witherspoon, 231 Mo. 716.]
It is to be borne in mind that in the suit itself, each party had been allowed a change of venue. The mandamus was a proceeding merely ancillary to the suit; a continuation thereof, a species of final process under the
V. Complaint is made that the court committed error in allowing defendant in error to amend the alternative writ of mandamus. The amendment consisted of the substitution of two persons as members of the council of the city, in lieu of, and as successors of, two others whose terms had expired. There was no error in doing so. The mandamus proceeding authorized by
VI. Plaintiffs in error complain in that the court, upon motion of defendant in error, struck out a part of the amended return. The portion stricken out pleaded that the complete assessment of taxable property in the city of Palmyra, finally settled by the city council as a board of equalization on July 24, 1923, amounted to $2,783,159; that the completed assessment for 1922 was $1,449,274; that the tax levy for 1922 was fifty cents on the $100 valuation; that under the provisions of
Judicial notice is also taken of the population of said city under the Federal census returns. [State ex rel. v. Jackson County, 89 Mo. 237; State ex rel. v. Wofford, 121 Mo. 61.] By census returns of 1920, the city had a population of 1964.
Like acts were passed in 1921, applicable to cities of other classes: One applicable to the cities of the third class (Laws 1921, p. 518); one applicable to cities of the second class (Laws 1921, p. 521); one applicable to towns and villages (Laws 1921, p. 522); and one applicable to cities under special charters, having more than 30,000 inhabitants and less than 50,000 inhabitants (Laws 1921, p. 520). None of said acts purported to apply to cities under special charters, except the one last mentioned, which could have no application to the city of Palmyra. As a city with a population in excess of 1000 and less than 10,000 inhabitants, the limit of its levy for city and town purposes under the
Counsel for defendant in error suggest that the acts of 1921 concerning levies by cities are unconstitutional; as being in violation of
VII. Complaint is made that the court erred in overruling the motion of plaintiffs in error to strike out part of the answer of the defendant in error, alleging an attempt of the city to add to the assessment of defendant in error, the amount of said judgment as a part of her property returnable for taxation.
Defendant in error pleaded the issuance of an order by the council of the city directing the city assessor to assess the judgment against her in the sum of $7,000, and pleaded also that thereby the city was estopped to deny the validity of said judgment. Counsel have cited nothing upon the question whether the city was estopped by this action, to challenge the legality of the judgment: The question is one of no importance. The court below, of course, held that the judgment was valid. Its holding is sustained on the ground that the judgment was rendered upon a trial had in a court of competent jurisdiction, at a regular term of that court, at which and throughout the case from its inception, the city without objecting appeared and made its defense, and being unsuccessful, appealed, and on appeal raised no issue as to jurisdiction. The objections made to the
VIII. Complaint is made of the action of the court in striking from the files the motion for a new trial and motion in arrest of judgment in the mandamus proceeding. There is a bill of exceptions here, setting out the evidence taken in that proceeding; but it does not show said motions, nor does it contain any reference whatever to them. The abstract of the record proper contains the statement that these motions were filed, and they are set out in the abstract, as also is the motion of defendant in error to strike them from the files, and the statement that the motion to strike out was sustained. There is no statement anywhere, showing an exception taken to the action of the court in sustaining the motion to strike them from the files. On that account, his action in doing so is not reviewable here. [State ex rel. v. Sanford, 181 Mo. 134.] Beyond that, it must be said that the motion for a new trial and motion in arrest contain nothing not included in the assignments of error, filed here, and considered here.
IX. It is urged that because the city was indebted under certain issues of bonds previously made, obedience to the writ would make it impossible for the city to liquidate those contracts; that they would have to be met by taxation; that any statute making it impossible for the taxing body to liquidate interest on its bonded indebtedness is unconstitutional as impairing the obligation of the contract; that the decision of a competent court has the same affect as the statute, and the law
The testimony was that there were bonds of the city unpaid to the amount of about $25,000. There was no evidence showing the purpose of their issue, nor the time of maturity. There was evidence that the increase in the total of the assessment of 1923, over the total of the assessment of 1922, was due mainly to the addition by the assessor, upon order of the council, of the sum of $1,400,000, as the assessment of the personal property of the “Bowles estate,” it being an assessment of $100,000 a year against said estate for a total of fourteen years, during which time, there had been no assessment of the personal property of that estate. The peremptory writ was granted October 1, 1923. It commanded the plaintiffs in error to proceed to levy, assess and collect a tax of fifty cents on the $100 valuation, and to do so from year to year as occasion required until said judgment and costs were paid, and that the same be paid to defendant in error, “except such amount thereof as may be necessary to pay the reasonable salary allowed by law to the mayor, council, assessor, marshal, constable, attorney and a reasonable police force for said city of Palmyra.” There was no showing as to any levy ever made, or any required to be made, to meet the contracts of the city under said bonds. The allegation of the return to the amended alternative writ was that these bonds had been issued between the years 1909 and 1921. There is no showing whether these bonds were issued for the purposes authorized in
There being no evidence to the contrary it must be presumed that the city officials complied with the mandatory provisions of the Constitution. [Delmar Inv. Co. v. Lewis, 271 Mo. 317; Kansas City v. Brown, 286 Mo. 1.] This being so, the tax to be levied under the peremptory writ does not prevent the levy of the tax to meet the city’s obligation under its bond issues, and the judgment does not, in its effect, impair the obligation of those contracts.
It results that the judgment awarding the peremptory writ of mandamus must be affirmed. Seddon, C., concurs.
PER CURIAM:—The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court. Ragland, P. J., Graves and Atwood, JJ., concur; Woodson, J., absent.