Kansas City v. St. Louis & Kansas City Land Co.

260 Mo. 395 | Mo. | 1914

LAMM, C. J.

— This is an appeal by corporate owners of property in Kansas City whose parcels were assessed to pay benefits to meet an "award of damages to other persons whose property was taken or damaged in a proceeding to widen a street.

Kansas City, in 1909, undertook to open and widen Sixth street from the east line 'of Bluff to the west line of Broadway, by condemning forty feet of private property on the south side of the street — Sixth street leading from the bottoms up town and being the main travelled thoroughfare for heavy hauling between the two. The authority for this proceeding was ordinance No. 3209, and, as there are several ordinances in the record, we will.call this the “original ordinance” passim. Under this original ordinance and in supposed compliance with charter provisions (Article 6, 1908) condemnation proceedings were instituted in a court known as the “municipal court” and ripened into judgment whereby damages were awarded for the land taken in the rise of $166,000, and the same amount was assessed against the city and over 13,000 different tracts owned by individuals and corporations, lying ■ within a benefit district prescribed by said original ordinance. No appeal from this judgment was taken, either by any landowner whose property was condemned, nor by any landowner whose property was assessed with benefits. On that judgment the city col-, lected of those benefit assessments the rise of $89,000 to pay said award of damages. Presently, and with matters in this fix, a certain railroad company, The Union Pacific, discovered the service on owners whose parcels were subject to assessment of benefits was defective. and brought its suit in equity in the circuit court of Jackson county against Kansas City and its officers, among them one Flynn. The life of the bill was injunctive relief in its favor (as an owner of property within the benefit district and which was assessed with benefits) against such assessment of benefits in the condemnation judgment under the original ordinance. Other parties in like fix (say, two or three) intervened. As there are several suits mentioned in this record, we will call this the “Flynn suit” to identify it. The Flynn suit ripened into a decree in favor of plaintiffs and intervenors. It is sufficient to say of the Flynn suit that the ’condemnation judgment under the original ordinance was not assailed for lack of jurisdiction in the municipal court, to hear any condemnation proceedings and assess any benefits to pay damages awarded therein (a newly discovered theory, now pressed), but in substance that case proceeded on the theory that plaintiff had no notice of the proceeding and hence the judgment as to it was void. The chancellor found a lack of notice and process (the order of publication required by the charter was not published a sufficient time) and that the several assessments made against plaintiff’s and intervenors’ properties were void because of such lack of service. Hence the municipal court had acquired no jurisdiction of them. The scope and object of the decree in the Flynn case are indicated by the following excerpt:-

“It is, therefore, considered, ordered, adjudged and decreed by the court, that said assessments, in so far as they effect [sic] or purport to effect [sic] plaintiffs or any of them or any of their several properties, be and the same are hereby annulled and for naught held; that the several assessments against the respective properties aforesaid of the plaintiffs and each of them be and the same are hereby set aside and annulled; the defendant Kansas City; M. A. Flynn, City Clerk; U. E. Weary, Clerk of said Municipal Court, and the officers and agents of said city, be and they are each of them perpetually restrained and enjoined from making out, certifying or attesting any tax bills against the several properties of the plaintiffs or any of them under and by virtue of said assessments, and that plaintiffs have and recover from the defendant, Kansas City, the costs herein expended and have execution therefor.”

Neither side took an appeal from the Flynn decree and it remained operative as a perpetual injunction against collecting such unpaid assessments.

With things in this fix, it seems that Kansas City attempted to repeal the original ordinance presumably for the purpose of abandoning the proceeding and returning to those paying assessments the amounts so paid. But the city was reckoning without its host; for pending such repeal measure, another injunction suit was brought in the Jackson Circuit Court — this time against the city and in favor of those property-owners whose lands had been condemned under the original ordinance and who had been awarded damages, to-wit, one Tuller and others. These new suitors, Tuller and others, took the position in their bill that on recognized equitable principles the city, under its charter, could not repeal the original ordinance and abandon such condemnation proceedings so far as those persons were concerned whose property had been taken or damaged and to whom damages had been awarded by the judgment, where (as here) benefits had been assessed and in part paid, and where (as- here) such property-owners had appeared, tried out the issue as to them and recovered their damages, and where (as here) the judgment was not appealed from. We will call this case the “Tuller case” for convenience. This Tuller • case also ripened into a decree whereby the city was, in effect, perpetually'enjoined from repealing the original ordinance and abandoning the condemnation proceeding, and this decree also was unappealed from, but remained operative as a perpetual injunction.

By the decrees in the Flynn and Tuller cases the city (to borrow the homely, similitude of one of its briefs) was enjoined “fore and aft. It could neither go forward nor backward.” In this peculiar condition it enacted an ordinance, No. 7539, -which we will call the “supplemental or curative ordinance.”'- The general object and purpose of this supplemental ordinance was to authorize a proceeding to assess and spread the balance of the benefit assessments (viz., those unpaid under proceedings on the original ordinance) over the non-paying properties in the benefit district. This supplemental ordinance was based on the authority of section 23, article 6, of the present charter of Kansas City, and ran on the theory the unpaid benefit assessments were void. The charter provision in question, together with the supplemental ordinance, will be found set forth in haeo verba in State ex rel. v. Seehorn, 246 Mo. l. c. 549 et seq. (q. v.), and they will not be reproduced here. The object of said sensible charter provision was to afford a remedy when by any error, defect or omission in condemnation.proceedings, assessments made against private property cannot be enforced or collected or where property in the benefit district is omitted, etc. In such case it was provided that the city may by ordinance institute and carry on supplemental proceedings to make a proper assessment against any parcel of property in the benefit district erroneously omitted or erroneously made in the first proceeding, etc.

Presently under such supplemental and curative ordinance, a new proceeding was instituted in the municipal court to make a new assessment against such properties within the benefit assessment district as had not accepted the former judgment by payment. Proper charter notice was given and, among others, the present appellants, save one, appeared. The assessments left unpaid under the original proceeding on this original ordinance were spread by this new proceeding over the nonpaying parcel's in the benefit district, assessing to Kansas City her share, and the appellants here, save one, appealed from that judgment to the circuit court of Jackson county and the case was assigned to Judge Seehom’s division. In that court such proceedings were had that the case reached a stage of the trial where Judge Seehorn announced his determination to try out the question of the amount of damages awarded to property-owners whose property was taken or damaged under the original proceeding as well as the question of assessing and spreading benefits over nonpaying properties within the benefit district — his view being that the nonpaying property-owners to be assessed with benefits were necessary parties to a proceeding awarding damages, hence a judgment void as to one was void as to the other; that to award damages and lay or spread assessments to pay them constitute an indivisible proceeding with two objects riding together.

The pleadings in this supplemental proceeding warranting such contentions, two prohibition suits were brought in this court to stop the trial in Judge See-horn’s court — one we will call the ‘ ‘ Graham-Seehom case;” the other, the “Tuller-Seehorn case.” Preliminary rules in prohibition issued and those cases will be found reported in the 246 Mo. at pages 541 and 568 respectively.

So far as pertinent here, the Graham-Seehom case held in judgment the main question: Had the charter court, known as the “Municipal Court,” any jurisdiction whatever of any condemnation proceedings. That question we answered in the affirmative by holding the court a constitutional repository of power in that behalf. In the Tuller-Seehorn case several questions were decided. One was that in supplemental or curative condemnation proceedings, brought.in the municipal court under a supplemental ordinance, as here, an appeal would lie in favor of a property-owner or any party interested to the circuit court. Another was that where such supplemental proceeding under such supplemental ordinance related only to making assessments on property against which an assessment was erroneously made in the original proceeding or was erroneously omitted to be made, as here, the jury should not include in their verdict the assessment of benefits and damages on property properly included in the first verdict — i. e., those properties taken or damaged the owners of which appeared at the first trial and acquiesced in the judgment, or those properties assessed with benefits which the owners paid — but the scope of their verdict could not extend beyond the assessment of property so wrongfully made or omitted to be made. Another question decided was that the verdict and judgment in the original proceedings were valid and binding as to those who appeared and accepted them, and cannot be taken either as interlocutory or as vacated because of an appeal in the supplemental- proceedings to the circuit court. Another question decided was that Kansas City by its charter may through its common council repeal an ordinance for widening a street and thereby a judgment for compensation and benefits in a condemnation proceeding is made void; but that such repeal is, by charter provision, restricted to “any time before any of the parties assessed with benefits shall have paid the amounts so assessed;” that the charter provision providing that no assessments made in the original proceeding in widening a street “shall be affected or interfered with for the reason that any other assessment made in the same proceeding may be invalid in whole or in part” is the basis of the power given in the charter to the city by supplemental proceedings to subject only property omitted by mistake o,r illegally assessed to its proportional part of the -costs of the improvement, and leaves the assessment of other property in the original proceeding, either with damages or benefits, stand as regular and not to be tried anew on an appeal in a supplemental proceeding, absent an appeal from the judgment in the original proceeding, as here, and present a payment of benefits and an award of damages to persons appearing, as here. Other reasons based on other charter reasons are given for that conclusion, and, among other things, it was held that .the fact that a condemnation proceeding was an entirety and the fact that the damages and benefits must balance each other are no sufficient reasons for vacating the original judgment of the municipal court-as to damages and benefits settled by it and acquiesced in, and are no sufficient reasons for a trial de novo of such particular matters on an appeal to the circuit court from a judgment in a supplemental proceeding. Another question decided in the Tuller-Seehorn case is thus correctly epitomized in the eighth syllabus:

“Property-owners in the benefit district whose property is not taken but which will be charged with its share of the damages to be paid for the property taken for the street, are not necessary parties to the issue of the'value of the property to be taken for the street; nor is it a denial of due process of law to deny to them a day in court to aid in preventing an unduly high valuation of the property to be taken, whose value in the end must be assessed against their property. The necessary parties are the city as plaintiff and the owners of the property to be taken as defendants; though, as a matter of grace, the owners of other property in the benefit district may be permitted to aid in preventing a too high valuation.”

Accordingly in the Tuller-Seehorn case our writ issued and the circuit court of Jackson county was prohibited from trying the question of the amount of damages awarded to those property-owners whose property was taken or damaged by the widening of Sixth street under the original unappealed-from judgment.

Accordingly in the Graham-Seehorn case we denied a writ of prohibition. .

When our judgments went down in those prohibition cases, the circuit court of Jackson county resumed the trial of the appeal from the judgment of the municipal court in the supplemental proceeding at the point the trial was arrested by our preliminary rules in prohibition, proceeding to verdict and judgment in those particulars in line with our pronouncements in the prohibition cases, the verdict assessing part of the damages against the city, and part against the non-paying parcels of property in the benefit district, including appellants ’ parcels.

Of the 13,000 tracts involved in the assessments of benefits, an aggregation of only thirteen corporate defendants appeal on due steps on a joint bill of exceptions. There is an appellant, the Union Depot Bridge and Terminal Railroad Company, that joins in questions raised by its co-appellants, but also raises questions singular to itself. Those questions will be considered separately.

What we have to say in determining this appeal may be put under the following heads:

(1) Questions determined in the Tuller-Seehorn and G-raham-Seéhorn cases.

(2) New questions arising at. the trial after our judgments in those two prohibition cases went down (and herein of those left open).

(3) Questions singular to the appeal of the Union Depot, etc., Co.

Of these seriatim.

I. Of questions determined in the Tuller-Seehorn cmd Graham-Seehorn cases.

Broadly, and as a main proposition, it is contended by appellants’ aggregation of veteran counsel that we determined nothing .correctly in those two cases. Therefore, nothing was set at rest and every question there involved must be reagitated and redetermined. To that end we are cited to the same authorities relied on to sustain the self-same propositions advanced in briefs in those cases and rule'd adversely. It must be apparent that if there was a general rule allowing two hearings on the same questions it would be a blazing infirmity in the law. If courts put themselves in a limbo of nonsense and set themselves continuously to planting and then pulling up, weaving and then ravel-ling (vide the classical legend of Penelope’s web), to stitching and then ripping, or, what amounts to the same thing, to deciding and then setting aside their own solemn adjudications, men and their posterity would think ill of our understanding. The doctrines of the law of the case are related to "stare decisis and res adjudicada and are the settled doctrines of this court —doctrines having their exceptions in emergencies, hut none of those exceptions apply here. There would be no end to litigation and no certainty in the law unless we adhered rigidly to the general rule of the law of the case and applied the exception to that general rule with rare circumspection and only when a palpable wound had been inadvertently given to justice and where no injury would result from a change in our judgments. In the named prohibition cases we halted the trial below on the prayer of these appellants. Why so? To s.ettle vital questions of jurisdiction they deemed necessary to a just hearing. We did settle them on full consideration and the trial judge resumed the trial at the point he was arrested and thereafter proceeded with it in conformity with our rulings. Delay has occurred in a matter of pressing public moment and outlays have been made on the strength of our rulings. We deem it in the nature of a scandal to the administration of the law to undo at this late day what we have done, by treading back on our tracks and sending this proceeding out of court with a tangle of confusion left behind and to the detriment of a great city, unless we are forced to do so by the imperious call of the law itself. We hear no such call. We see no such necessity. The stiff general rule is that the lower court was bound by our former decisions and so are we on second appeal. [Gracey v. St. Louis, 221 Mo. l. c. 5 et seq., and cases cited.] We apply that rule.

(a) It is argued on behalf of appellants, in effect, that the municipal court in which the proceeding originated is not a constitutional court for the purpose of condemning property, but that, under that instrument, exclusive jurisdiction rested in the circuit court. The industry of counsel (who, indeed, left no stone unturned) in pursuit of authority has been unable to cite us to, a single Missouri case sustaining them. There is an array of them running counter in theory. The Constitution provides for a municipal court. It contains provisions authorizing the people of certain cities to frame th'eir own charters governing themselves in municipal matters, and that they may alter and amend them.

In a line of great cases in this court on all-fours, wherein appeared great lawyers to raise questions and elucidate contentions, it has uniformly been ruled that those charter provisions relating to the exercise of the right of eminent domain and the power to prescribe benefit districts, spread benefits over lots therein, pay damages for property condemned under the exercise of the right of eminent domain, are one and all matters of purely municipal concern and are governed by charter provisions. As pointed out in the GrahamSeehorn case it was ruled that jurisdiction was properly lodged in the municipal court. This conclusion was arrived at by considering the Constitution, the charter and the pertinent general doctrine of a line of unshaken cases. Accordingly on the authority of the Graham-Seehorn case we disallow the point to appellants. In a somewhat similar case in New York (Worthington v. London G. & A. Co., 164 N. Y. 81), where the question was whether a municipal court of the City of New York had jurisdiction, and where it had been ruled adversely by some inferior courts, Bartlett, J. (speaking to sncli decisions and for the Court of Appeals) used apposite language, viz.: “This decision has such a serious effect on the business interests of a great city containing about three millions and a half of inhabitants, that the question may well be asked whether a situation is not presented where the familiar rule of construction may be applied most rigidly, that a statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to and reconciliation has been found impossible, the statute will be upheld. ”

The rule invoked by- the New York court to prevent a statute’s perishing by construction is the trite doctrine of this court to be found in almost every volume of its reports.

Take this case, to illustrate, the far-reaching effect of destroying the jurisdiction of the municipal court of Kansas City in opening and widening streets and spreading benefits over a district, thereby striking down all it has done and all its predecessor, the may- or’s court, did in that city in such matters of emphatic municipal concern, led us in the Gfraham-Seehorn case by permissible rules of construction, to sustain the constitutional jurisdiction of the municipal court. We were glad to do that then and we are glad to stand by - that ruling now. Stare decisis.

(b) It is argued on behalf of appellants who, it must be remembered, are not lot-owners whose property was taken or damaged, but are lot-owners' whose properties are assessed with benefits, that they were entitled to be heard as parties on the question of the amount of damages, that to deny them a hearing on that- issue violates those constitutional provisions guaranteeing due process of law and equal protection of the law. But this contention (with a group of related ones we will not enumerate) was squarely held in judgment in the Tuller-Seehorn case and squarely decided against appellants. That case must be read with this, for we will not, reformulate or reproduce its doctrines'. Appellants had due process of law in the trial nisi on the question of benefits. They attempted to show there were none and took the verdict of the jury thereon and on the amount, if any. That question (benefits) relates to the power of taxation, while the part of the proceeding relating to the taking and damaging of property rests on another power, to-wit, the exercise of the sovereign'power of eminent domain. They are distinct in quality and are governed by different principles. We ruled in the Tuller-Seehorn case, in effect, that lot-owners whose properties were subject to assessment in the benefit district were not necessary parties to that part of the proceeding in the sense that the validity of the judgment depended on notice to them; that as the parties whose properties were taken or damaged in the original proceeding appeared to the notice given and submitted to judgment, the amount of their damages became res adjudieata and were not open to further inquiry. The Tuller-Seehorn case stands on its own reasoning and on the authorities it cited and reviewed. We deem the question, therefore, foreclosed.

II. Of new questions arising at the trial after our judgment in the prohibition cases went down {and herein of those left open).

(a) It is argued that the decree in the Flynn case was res adjudieata; that the effect of the ruling in that case was to make void the entire original proceeding, hence there was nothing to supplement by a supplemental proceeding. If appellants’ premises were true their conclusion might be allowed as sound. But under our rulings in the prohibition cases, supra, the premises are not true, henee the conclusion is unsound. Hereinbefore we set forth the material part of the Flynn decree and therefrom it appears that certain assessments alone were made void. The decree was cautious and precise in that regard. Now, in our judgment in the Tuller-Seehorn case the original proceeding so far as the amount of damages for property taken was concerned and so far as the assessments of benefits on lots whose owners acquiesced in the decree and paid the benefits were concerned, was upheld. We but follow that ruling in disposing of the point in hand, as we have done.

(b) It is argued by appellants that section 23, article 6, of the charter relating to supplemental proceedings to cure errors, defects and omissions in the original proceeding has no application to the case at bar. We disallow the contention. The charter provision and the supplemental ordinance are set forth in full in the Graham Seehorn case, 246 Mo. l. c. 549 et seq. (q. v.) The charter provision is a sensible one. In carrying through condemnation proceedings errors and omissions, despite care and pains, are likely to arise, where, as here, there are a vast number of tracts and many tract owners involved, and such supplemental proceedings are provided for in said charter provision, inter alia, “to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper amount such private property, exclusive of the improvements thereon, is benefited by the proposed improvement,” etc. Certainly in the case at bar it is well within a proper use of English' to say that the assessments of lots within the district owned by persons who repudiated the proceeding were erroneously made or were omitted to be made in a true sense. To rule as appellants' ask us would crib and confine the charter provision to bounds too narrow to meet the* mischiefs at which it was aimed. Our bounden duty is is to construe it (if allowable in reason so to do) to meet those mischiefs and thus further its evident purpose. Accordingly the point is disallowed to appellants.

(c) It is further argued on their behalf that the original ordinance is void on its face for that it requires the amount allowed for private property taken to be wholly raised by special assessments against the property described in the benefit district. The point hinges on the fact that, section 3, article 6, of its charter directs there shall be assessed against the city the amount of benefits to the city and public generally, inclusive of any benefit to any property of the city, and that the balance, if any, be spread over the several tracts of private property in the benefit district. The original ordinance is unhandsomely worded, but when due effect is given to all its words and its intendment is allowed to arise on the whole instrument, it will appear that the construction sought to be put upon them is unnecessarily harsh. A law ought not to be tortured so that a vice may appear by wringing it. The ordinance has the following provisions:

“And all private property within said limits is hereby taken and condemned for public use as a part of Sixth street and just compensation therefor shall be assessed, collected and paid, according to law. The amount allowed for private property taken, shall be wholly raised by special assessments made against the property described in the next succeeding section in accordance with article 6 of the charter of Kansas City, Missouri.”

It will be observed it requires that compensation for condemned property “shall be assessed, collected and paid, according to law.” It will also be observed that those assessments must be made “in accordance with article 6 of the charter of Kansas City, Missouri.” We do not think the Validity of the supplemental proceedings breaks .on the-point made. This because:

(1) Counsel point us to no provision of the charter requiring the ordinance to make the quoted recitals and we have not been able to put our finger on one. The charter stands on its own legs and, in that regard, seems self-enforcing. It is full and explicit, leaving no room for doubt in the particulars in hand, and, as to them, does not seem to need the adventitious aid of any ordinance.

(2) Giving effect to all the ordinance words and construing them with the charter, to which the ordinance points for the law and for the rule of making assessments, its meaning is clear enough, to-wit, that the charter is to be followed.

(3) Moreover, that was. the trial theory. The charter was followed. The city was assessed its charter share and not a particle of injury came to appellants because of the objectionable phrase.

(4) But more (and most of all) the instant proceeding, in those parts vitally affecting appellants, was under the supplemental ordinance (246 Mo. l. c. 550 et seq.), and that ordinance pointed only to the charter and made a call on its provisions for the rules to govern the supplemental proceeding.

Accordingly the point is disallowed to appellants.

(d) Finally it is argued that the supplemental ordinance is void on its face because (we quote from appellants’ “points and authorities”) “this ordinance in vague, indefinite and uncertain in its terms and does not comply with said section 23, which required the proceedings to be ‘to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper amount,’ etc., and further that ‘such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be acquired or as'sessed,’ etc.”

Ill the evolution of their argument under this head the order of publication to property-owners is criticised for alleged equivalent vices. But it will be observed that the order of publication is wholly distinct from the ordinance and that the point made does not include that step in the proceeding directed to giving-notice by order of publication. Appellants appeared to the order and tried their case on the merits. We do not say that where that is done a case might not be put where an objection might not be made at the hearing to the order of publication. But we do say that an appearance and a trial on the merits leave parties in an uncommonly serious predicament in so far as objections to. the form of the order are concerned. We think there.is no substantial merit in this phase of the matter.

As we gather it appellants contend that the supplemental ordinance should have described by metes and bounds or sonie definite description each particular tract of the 13,000 erroneously omitted or erroneously assessed in the original proceeding. We do not think so. If we rule in that way as to the supplemental ordinance it would follow that the original ordinance should particularize by precision of description each separate tract in the benefit district. Why prescribe such an enormous publication descending into so many particularities in which a variation from the fact would breed a new crop of errors and omissions'? The settled practice has been not to descend to such particularity. Up to this time notice to the property-owners generally in the described benefit district and defining the district, as here, have been sufficient to bring in interested parties. It was sufficient in this instance. They came in. Not one of them had any difficulty in finding where the shoe pinched him. Each knew the issue involved and directed its proof to that issue. So that while we have been informed and instructed by the ingenious refinement of the point, we have not been convinced ' it is sound.

(e) Some criticism is indulged on the instructions. It would swell this opinion beyond bounds to reproduce all of them, and thereby by ocular demonstration show that they did not conflict with each other but announced propositions of law agreeable to our rulings in the G-raham-Seehorn and Tuller-'Seehorn cases. We are of opinion appellants received favorable consideration at the hands of the court in instructions and that the verdict of the. jury and judgment of the court ought not to be disturbed on that score.

III. Of questions singular to the Union Depot Bridge and Terminal Railroad Company.

The. Union Depot Bridge & Terminal Railroad Company owned a small tract of land in the benefit district, was assessed a small benefit thereon in the original proceeding and paid the assessment. As we grasp it, it also laid claim to . shore land on the Missouri River in the benefit district. There were other claimants for this land, among them the city, and a suit was pending in the Federal court to determine and settle title. Things were in this fix when the original condemnation proceeding was tried. We think it clear that no assessment whatever was made against this land by the original verdict and judgment. In the map filed with the original ordinance to initiate the original proceeding these disputed shore lands were marked “owned or claimed by the Union Depot Bridge and Terminal Railroad Company and Kansas City, Missouri,” indorsed across them. The record is not as plain as it might be and it is possible that different hypotheses might spring because of obscurity, but a study of it leads us to the conclusion these shore lands were omitted-— doubtless owing to the fact that the ownership was in controversy. Between the time of the first verdict and judgment and the time of the supplemental proceedings a compromise was made in such Federal suit and by agreement between an aggregation of claimants certain tracts of these shore lands were given to appellant and certain parts respectively to other litigants, and a decree was entered in the Federal court vesting and quieting these respective titles. When the supplemental proceedings were brought to a head by verdict and judgment the several tracts of shore land awarded the present appellant by that decree were assessed with benefits — at first, in gross, but (subsequently by amended decree) the benefits were spread in a definite amount over each separate tract. It does not seem this appellant appeared and took any part in the trial under the supplemental ordinance and proceeding. It had the same notice by publication all other tract-owners had, but it chose the course of keeping in the background. When the verdict came in in the supplemental proceeding assessing its shore land tracts with benefits, it for the first time appeared and filed a motion for a new trial. In a nutshell it claims that the judgment in the first proceeding was res adjudicata on the question of its liability to assessment for these lands. This contention splits itself into branches. In the first place the hypothesis is indulged that the lands are covered by the assessment of benefits against the city in the original proceeding. Again, that they are covered by a clause in the original verdict to the effect that against lots and parcels of land lying within the benefit district as prescribed by the ordinance “and not hereinbefore mentioned and described, we assess no benefits.” If the latter view be taken then appellant confronts the proposition that the first verdict in that behalf was a nullity because of lack of notice. On the other hypothesis it is sufficient to say that the record does not bear out the theory. Appellant came into the case late, and on a motion for a new trial. It filed no affidavit of newly discovered evidence. It brought to the attention of tlie court the Federal decree on that motion. That was not newly discovered, but we pass the point to let the matter ride off on its merits. We are of opinion that the land was erroneously omitted in the first as-, sessment and that appellant' ought not to complain over paying its share of the cost of the improvement with its coappellants and all other property-owners in the benefit district.

Other questions are raised we deem immaterial. There are a superabundance of briefs in the case, and, doing the best we can with the record, we are of opinion the judgment below was right “and should be , affirmed. It is so ordered.

All concur'except Graves and Woodson, JJ., who dissent for the reasons stated in their dissent in State ex rel. Graham v. Seehorn, 246 Mo. 541.