Kansas City v. Field

270 Mo. 500 | Mo. | 1917

FARIS, J.

— This is an appeal from the circuit court of Jackson County, wherein upon motion to that end, the court refused to quash an execution which had been levied upon the land of movant, who is appellant here.

On the 19th day of June, 1900, as the result of a certain proceeding to condemn lands for a park to be known as West Terrace Park, and to assess benefits to produce a fund to recoup the city for its outlay in payment for the condemned lands, judgment was rendered, among others against the lands of movant. Movant did not appeal from the latter judgment, but one Catherine Mulkey appealed on her part from the judgment assessing benefits against her land, which appeal was decided against her by this court on the 30th day of June, 1903. [See Kansas City v. Mulkey, 176 Mo. 229.] Mandate was issued by this court in the last-mentioned appeal on the 11th day of July, 1903. The execution herein sought to be quashed was issued on the 12th day of July, 1913. The mandate from this court was filed in the circuit court of Jackson County on the 13th day of July, 1903. The motion to quash the execution filed by movant, so far as .it is pertinent, is, caption and signature of counsel omitted, as follows:

“Now, on this 30th day of July, 1913, comes Eichard H. Field, and states and shows to the court:

1. That he is and was at .the times hereinafter named, the owner of the following described real estate in Kansas City, Jackson County, Missouri, to-wit:

“The west fifty-two feet of the south sixteen feet of Lot No. Thirteen and the west fifty-two feet of Lot No. Fourteen, Coffman’s Addition.

“2. That, on July 12, 1913, the clerk of the circuit court of Jackson County, Missouri, issued and delivered to the sheriff of said county an execution of. that date on a judgment of said circuit court at Kansas City, in the above entitled cause, dated and rendered June 19, 1900, for $92.83, against the above described real estate, and also for other sums against other lots and parcels' of real estate in said city described in said execution in which said Eichard H. Field was and is in no wise interested or concerned. .

“3. That said execution or the record in the case does not show that said execution was issued on a live judgment, or- that'the clerk of said court had any right or authority to issue said execution against the said real estate of the maker of this motion.

“4. That said execution was issued after the expiration of ten years from June 19, 1900, the date of the original rendition of said judgment'; and said judgment had not been revived, and no payment had been made on said judgment against the above described real estate at any time within ten years before July 12, 1913, the date of said execution.

“Wherefore, the said Eichard H: Field moves the court to quash said execution as to his said real estate above described, and for judgment for costs hereon.”

In passing upon this motion the learned court 'nisi made a special finding of facts which will serve to make clear the ruling facts of the case. This special finding of facts is as follows:

“1. That Richard IT. Field is and was the owner of the land described in his motion filed in this canse to’ quash the execution issued herein.

“2. That on July 12, 1913, the clerk of the circuit court of Jackson. County, Missouri, issued and delivered to the sheriff of said county an execution of that date on the judgment of this court in this case, dated and rendered June 19, 1900, for $92.83, against the said described real estate, and also for other sums against other lots and parcels of real estate in said city, described in said execution, in which said Richard H. Field was and is in no wise interested or concerned.

“3. That said execution was issued after the expiration of ten years from June 19, 1900, the date of the original rendition of said judgment, and that said judg.ment had not been revived, and that no payment had been made on said judgment against the said described real estate of Richard IT. Field at any time within ten years before July 12, 1913, the date of said execution.

" 4. The court further finds that this cause was appealed by certain parties to the Supreme Court of Missouri, which court affirmed the judgment of the circuit court on June 30, 1903, and the mandate of the said Supreme Court, dated July 11, 1903, was filed with the clerk of the circuit court of Jackson County, Missouri, at Kansas City, Missouri, on July 13, 1903.

“Thereupon, the court being fully advised in the premises, overrules the said motion of Richard H. Field, to which ruling of the court the said Richard H. Field excepts.”

If facts in additipn to the above are found necessary to make clear what we find It necessary to say, we ■will set them out in the opinion, infra.

Judgment. I. The briefs are able and extremely voluminous, covering not only the points which seem to control the case, but also many interesting points afield. However, the two points, decision of which seems se^e the case, are these: (a) Does the general Statute of Limitations so far bar a judgment such as that here as to forbid after ten years the issuance of an execution thereon, and (b) did the appeal of Catherine Mulkey have the effect to extend the time, or toll the statute for the period that such appeal was pending here? For convenience we sometimes refer to section 1912, infra, as a Statute of Limitations. Whether it be so, or merely the concrete statement of a rule of evidence, we do not decide.

That an execution may not issue upon an ordinary judgment after ten years, is well-settled. For the following statute so ordains, to-wit:

“Every judgment, order or decree of any court of record of the United States, or of this or any other State, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from .the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.” [Sec. 1912, R. S. 1909.]

Another general statute cited and urged by movant as apposite, reads thus:

“Executions may issue upon a judgment at any time within ten years after the rendition of such judgment.” [Sec. 2133, R. S. 1909.]

It is urged by respondent, however, that neither of the above statutes is applicable, but that the matter is controlled by an alleged applicable provision of the charter of Kansas City, which in full reads thus:

“After the judgment of confirmation of such verdict and proceedings, the clerk of said court shall certify under the seal of said court, to two copies of said verdict, one of which copies he shall deliver to the city treasurer and one to the city auditor, and said assessments for benefits, if any, against private property shall be a lien from the date of the taking effect of the ordinance in pursuance of which said assessments are made and said proceedings instituted, and shall attach to' the several lots or parcels of land so assessed with benefits as aforesaid; and said lien shall continue against each lot or parcel assessed until the assessment against such lot or parcel has been paid or collected in full, both principal and interest. No assessment shall be defeated or affected by any irregularity affecting any other assessment -or from the rendering of any other assessment invalid in whole or in part.” [Sec. 20, art. 10, Charter 1898, Kansas City.] (We have italicised the particular part of the section supra upon which respondent relies.)

Does this charter provision so far control as that execution may issue after ten years'? Passing for the present the obvious query whether the language of the charter quoted supra carries, inevitably, the meaning which respondent puts on it, we do not think the provision even as construed by respondent has the effect claimed for it. It is self-evident that since Kansas City is in Jackson County and t-herefore an integral component of the State of Missouri, the general laws of the State run there and will control unless the Constitution, or other laws passed pursuant thereto, have abdicated this right of control. If this right of control has been delegated it comes from the below quoted pertinent provisions of pur statutes. Appositely pertinent parts of section 9703, following the Gonstitutioñ itself (Constitution, sec. 16, art. 9.), provide:

“Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a board of thirteen free-holders, who shall have been for at least five years qualified voters thereof, to be elected by the qualified voters of such city at any general or special election, which board shall, within ninety days after such election, return to the chief magistrate of such city a draft of such charter signed by the members of such board, or a majority of them; . , . but such charter shall always be in harmony with and subject to the Constitution and laws of the State.”

By the next following section it is provided that after the adoption and ratification thereof such charter “shall be and constitute the entire organic law of such city and shall supersede all laws of this State then in force in terms governing or appertaining to cities having one hundred thousand inhabitants or more.” [Sec. 9704, R. S. 1909.]

It will be noted that the Legislature exercised a large degree of care and caution in providing precisely what laws should be superseded upon the adoption of a charter by a city authorized to do so. Such super-session is expressly limited to such laws as “in terms,” that is, specifically, “govern and appertain to cities having one hundred thousand inhabitants or more.” But we have had in many cases to construe how far this provision of the statute superseded laws of the State or municipality which would otherwise govern and control. [McGhee v. Walsh, 249 Mo. l. c. 280; Mullins v. Kansas City, 268 Mo. 444.] In the case of McGhee v. Walsh, supra, this Court in Banc said,:

“The city, of Kansas City is organized under a special charter pursuant to the provisions contained in the organic law (Sec. 16, art. 9, Constitution), and the statutory authority conferred by an act of the General Assembly, approved March 10, 1887 (Laws 1887, pp. 42-51), . and divers amendments thereto, subsequently passed. The charter under which this city is now working, was adopted and went into effect September 4, 1908. By the statute such charter when it went into effect automatically superseded the statutory provisions for the government of cities of the class into which by its population the Legislature had placed Kansas City (Sec. 6360, R. S. 1899); subject, however, to the limitation, that the provisions of such charter should be in harmony with the Constitution and laws of the State. [See. 6359, R. S. 1899.] That such is the legal effect of the adoption of such a charter, aside from the statute (which is lucid and clear), has been judicially determined by this court in several cases which came before us. [Kansas City v. Marsh Oil Co., 140 Mo. l. c. 471; St. Louis v. DeLassus, 205 Mo. l. c. 585; St. Louis v. Liessing, 190 Mo. l. c. 480.]”

Likewise in the Mullins case, supra, this division said: “It will be noted that the latter section does not say that such charter shall supersede all laws of this State. and stop there, but it modifies and limits the laws so superseded thereby as laws then in force in terms governing cities having 100,000 inhabitants or more. In short, the limitation of said section is as to a particular sort of laws, not general, but such as govern and appertain to cities having 100,000 inhabitants or more. But that is not all of the indicia which point to the meaning and proper construction of said section 9704. The latter section limits the laws which the charter supersedes to the entire organic law of such city. We know that, under our system and manner of speaking in this State, we apply the term ‘organic law’ of the cities of the several classes to the articles and chapters of the statutory laws which govern and regulate the several classes of cities, towns and villages; -that in a way such articles and chapters delimit and fix the powers of such cities, towns, and villages in a manner similar to that in which the Constitution of the State sets bounds to the powers of the three co-ordinate branches of State g'overnment. Nor is this all; there is, as we view it and construe it, an express exception to the pow*u conferred on such cities to frame a charter. This exception is that the provisions of such charter shall be ‘subject to the Constitution and laws of this State,’ and consistent therewith. [See. 9703, R. S. 1909.] This provision and limitation refers to all laws of the State, except those then in force in terms governing and appertaining to cities having 100,000 inhabitants or more.”

In the light of the provisions of our statute, which permits the issuance of an execution at any time within ten years after the rendition of a judgment (Sec. 2133), and of that which forbids the issuance after ten years of any execution upon any judgment, order or decree of any court of record (Sec. 1912, supra), we do not think there can be any doubt that the execution issued below in the instant case ought to have been quashed. [Eyssell v. St. Louis, 168 Mo. 607; St. Louis v. Annex Realty Co., 175 Mo. 63.]

Many cases are cited to us why this view should not be taken, but these cases but follow the fairly ancient ease of State ex rel v. Field, 99 Mo. l. c. 356, wherein it was ruled that the “matter of assessing damaged and benefits for grading and regrading streets náturally falls within the domain of municipal government,” and that a general law relating to municipal affairs may be in effect repealed by the adoption of a charter. To this aggregate of charter powers which fall naturally into the domain of municipal government may be added the method of “collecting the cost of street improvements.” [Murnane v. St. Louis, 123 Mo. 479; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kansas City ex rel. v. Scarritt, 127 Mo. 642; Kansas City v. Ward, 134 Mo. 172; St. Louis v. Dorr, 145 Mo. 466; Kansas City v. Bacon, 147 Mo. 259.] In the case of Kansas City v. Marsh Oil Co., supra, at page 471, the general rule by which we may distinguish matters of purely municipal control from matters affecting the fixed general policy of the State, is thus laid down:

“So long as Kansas City, under its special charter, does not invade the province of general legislation, or attempt to change the policy of the State as declared in her laws for the people at large, it will not be held to be out of harmony with such laws, notwithstanding the provisions of the special charter may be different from the general statutes prescribed for the government of other cities in their local affairs.”

"We think it is so clear as to render exposition unnecessary, beyond the mere statement of the proposition,-that the question whether an execution can be issued upon an unrevived judgment after ten years, is one pertaining to the general laws and policy of the State, and not a question relating strictly to municipal affairs. It may be that some other method of collecting ah assessment of the character here confronting u§ (St. Louis v. Brinkwirth, 204 Mo. 280) could have been devised, and thus have rendered a judgment upon the real property unnecessary. With that question we are not here concerned. Appellant does not question the -inherent validity of the judgment; neither will we do so.' The city saw fit to provide for a judgment of a court of record of general jurisdiction. That judgment became, so far as the point before us is concerned, like any other judgment, and execution thereon must follow the course of any other execution. If the issuance of an execution can be delayed for thirteen years, it can be delayed for thirty years, or three hundred years, which would be onerous in the case of the instant judgment which bears interest at thé rate of fifteen per cent per annum. Granting for argument’s sake the point which we do not meet here, and do not decide, that a necessity, rationally explainable, exists for the continuance of a lien beyond the general statutory limit, no reason can be seen for delaying the issuance of an execution for more than ten years. With such a rule differing so vitally and radically from the rule elsewhere in the State, and elsewhere in Jackson County even, no man could buy or sell real estate, nor could any lawyer pass upon title to real estate, with either satisfaction or certainty. Such a holding would result in the digging of pits for the feet of the unwary. The laws of the State announcing the general policy of the State create a conclusive presumption of payment of a judgment after the expiration of ten years, and forbid the issuance of an execution upon such an ancient judgment after that period has elapsed (Sec. 1912, supra) and since such a matter is not necessarily one of strictly municipal concern, no city has the right to adopt a charter or pass an ordinance in contravention of a plain statute announcing that policy.

The provision that fifteen per cent, interest may be charged upon such a judgment as a penalty — by analogy upheld for reasons that arguendo seem sufficient (Brunn v. Kansas City, 216 Mo. 108) — would or easily might, in a case like this, prove confiscatory. The judgment in the instant ease' has trebled, and -is fast quadrupling.

We have approached the question from the point of view of respondent, contradicted by appellant most strenuously, that the quoted italicised part of section 20 of article 10 of the Kansas City Charter is in fact in contravention of the general statutes of the State. Counsel for appellant, as we understand them, urge that it is not opposed to, but in harmony with, the general laws. If it is not there is not and has not been any question before us, and the execution ought to be quashed for that reason, in addition to the one we have found ample to this end.

Life of Judgment: Appeal. II. Which conclusion brings us to a consideration whether section 1912 is tolled by the fact of hn appeal, wherein, and in final result, the judgment appealed from is affirmed. The language of the statute under discussion is that the period of ten years is to be counted “from the date of the original rendition” of such judgment, and that’ from and after the expiration of such period no execution may issue thereon. If the word “original” had not been used, there might be some doubt about the matter. For without this word a debatable question can be mooted as to time of the rendition of ■ a judgment when such judgment is appealed from, but from the use of the word original we have no great difficulty in concluding that no execution may issue upon an unrevived judgment, if ten years has elapsed from the date of the rendition of such judgment by the circuit court, regardless of whether such judgment was appealed from or not. [George v. Middough,. 62 Mo. 549; Smith v. Steel, 81 Mo. 455; Mullen v. Hewitt, 103 Mo. 639.] This view is not only according to the letter of the statute, but follows the reason of the thing as illuminated by analogy. For an appeal does not stay a judgment, or stay the issuance of an execution thereon. It is the supersedeas statute which, upon condition, stays a judgment pending an appeal upon the appellant’s making and filing bond of the requisite sort and sum. If a judgment be not suspended or stayed by a supersedeas bond, it continues, pending an appeal, in full force and vigor. If it be not in fact rendered till an appeal is finally determined, it would be difficult to explain satisfactorily why execution pending appeal can be bottomed on a judgment which has never been rendered. Moreover, such a view, the indefinite delays incident for one or another reason upon an appeal regarded, would have the effect upon respondent’s view being taken, to make some judgments continue in force without being revived, for eleven years; while others would be good for fifteen years or more. We conclude that a judgment expires by limitation, caeteris paribus, in ten years after it is rendered in the circuit court, whether such judgment be appealed from or not.

In passing- we may say that upon no view can it be maintained in the instant case that the statute had not so far run as to forbid the issuing of an execution here. For the judgment nisi in the instant case was affirmed here on the 30th day of June, 1903, but the execution here sought to be quashed did not issue till July 12, 1913, ten years and twelve days thereafter. So- upon any view, the contention of respondent that ten years had not. elapsed between the rendition of the judgment and the issuance of the execution under fire, must be overruled.

It results that this case must be reversed and remanded with directions to the circuit, court to sustain the motion to quash the execution. Let this be done.

All concur.