author: BLAIR, C.

text:
    ELLA M. PICKEL, Appellant, v. WILLIAM PICKEL and FREDERICK J. PICKEL.
    Division Two,
    June 17, 1913.
    1. DECREE: Appeal: Time for Filing Bond: Extended by Supersedeas. 'Where an appeal was taken from a judgment reading that defendant “may,” within ten days, “execute and deliver to plaintiff his bond,” etc., or, failing that, suffer designated consequences, the time for filing the bond was extended by supersedeas.

      2. APPEAL: Supersedeas: Terminates When Mandate is Filed in Trial Court. Stay of proceedings by supersedeas during appeal does not terminate until the Supreme Court’s mandate is filed in the trial court.
    3. -: Dismissed: Misconstruction of Decree Appealed From. Where plaintiff took proper preliminary steps to appeal and then withdrew or dismissed them, misconstruing the effect of the decree from which she appealed, the Supreme Court will not adopt her misconstruction in order to prevent her from losing' the benefit of the appeal she dismissed.
    4. -: From Order Approving Bond Filed in Accordance With a Decree: Questions for Review. Plaintiff appeals from an order of the circuit court approving defendant’s bond given in accordance with the court’s decree, and contends that the effect of the bond is to exempt other property of defendant from plaintiff’s claims. Plaintiff perfected no appeal from the decree itself. Held, that the contention is not to be considered. What the decree was and is and not what it ought to have been is now the question.
    5. --: -: Evidence: No Offer in Trial Court. Where no evidence was offered upon a point in the trial court, there is no record basis for an assignment of error before the Supreme Court based on the exclusion of such evidence.
    Appeal from St. Louis City Circuit Court. — Hon. ~ Daniel D. Fisher, Judge.
    Affirmed.

      Randolph Lau'ghlin for appellant.
    (1) The decree of July 24, 1911, was self-executing. A self-executing decree is not superseded by an appeal bond. Mann v. Doerr, 222 Mo. 18; Commission Co. v. Spencer, 236 Mo. 628; Jayne v. Drorbaugh, 63 Iowa, 715; Allen v. Church, 101 Iowa, 123; Elliott’s App. Proe., secs. 392, 393; Pinkelnburg’s. Mo. App. Pr., 76-77; State ex rel. v. Dillon, 96 Mo. 61. Especially is this true where the self-executing portion of the decree is merely a matter of grace or favor extended for a limited length of time. In such a case, the time expires, and the privilege with it, notwithstanding the appeal. Perry v. Bank, 9 Abb. Pr. 103. It results that the affirmance of the decree by this court (Piekel v. Piekel, 243 Mo. 641) affirmed it as it then was (and, the privilege having expired, it affirmed the expiration of that privilege), and left the parties in the same ppsition they would have occupied had there been no appeal at all. Respondents have not been able to meet, find have not met directly, any one of these four several contentions. But they have sought to escape them indirectly, by advancing other propositions inconsistent with the conclusion reached. (2) Payment or performance of an obligation imposed by judgment or' decree is not an acceptance of benefit thereunder, but on the contrary is regarded as an act done by compulsion, and it will neither work an estoppel nor prevent or embarrass an appeal. Lumaghi v. Abt, 126 Mo. App. 228; Cassell v. Fagin, 11 Mo. 207; Dakota County v. Glidden, 113 U. S. 222.

      Barclay, Fauntleroy, Cullen & Orthwein for respondents.
    (1) In the original case the defendants gave bond, and this stayed all proceedings and the defendant could not be required to give the $10,000 bond until the judgment was ripe for execution. State ex rel. v. Lewis, 76 Mo. 370. (2) A mandate is the official mode of communicating the judgment of the appellate court to the lower court, and no proceedings could be had in the lower court until the mandate had been filed in such court. Lafferty v. Rutherford, 10 Ark. 453; People v. Wadloe, 166 111. 119; Piel v. Railroad, 12 S. W. 759. (3) One who has accepted satisfaction of a judgment or received the fruits of a judgment or decree cannot appeal therefrom. Wolfort v. Reilly, 133 Mo. 163; Rosenburger v. Jones, 48 Mo. App. 606; Robards v. Lamb, 76 Mo. 192; In re Sachleben, 106 Mo. App. 307; Waddingham v. Waddingham, 27 Mo. App. 596; Noah v. Insurance Co., 78 Mo. App. 370; King v. Campbell, 107 Mo. App. 496; Pockman v. Meatt, 49 Mo. 345; Evens v. Lubke, 15 Mo. App. 152. (4) Where the mandate fixes no specific time for compliance with the decision of the appellate court, the court below may fix the time. Ferriss v. Ferriss, 29 S. W. 976; Faircloth v. Isler, 76 N. C. 49; Bloor v. Smith, 96 N. W. (Wis.) 544. (5) On the remand of the cause the trial court may make any order or direction in its further progress that is not inconsistent with the decision of the appellate court, or that is necessary to carry such decision into effect. Patten v. Stitt, 34 N. Y. Sup. Ct. 346; Rogers v. Patterson, 4 Paige (N. Y.), 418; Bloor v. Smith, 96 Ñ. W. (Wis.) 544. (6) The affirmance of the original judgment as modified by the Supreme Court was in effect á new judgment giving to Wm. Pickel the option to either file the bond within ten days therefrom or permit the property to be sold. Krause v. Steel Co., 91 Pac. 442.
   BLAIR, C.

By its judgment of March 15,1911, in a suit for maintenance, the 'circuit court of the city' of St. Louis allowed plaintiff certain sums for attorney’s fees and suit money and ordered her husband, •defendant Frederick J. Pickel, to pay to her the sum of $100 on the first of each month thereafter for the support of herself and child. Thereupon plaintiff began a suit against her husband, Frederick J.' Pickel, and his father, William Pickel* to set aside, on the ground of fraud, the transfer of certain corporate-stocks from the former to the latter. On the 24th day of July, 1911, in that case, the court entered its decree wherein it found, in substance, that certain sums aggregating about $1500 were due plaintiff from her-husband under the decree of March 15, 1911, in the-suit for maintenance; that payments of $100 each would thereafter fall due each month under that decree; that defendant Frederick J. Pickel was “insolvent except as to the property hereinafter mentioned and is execution proof and that plaintiff’s indebtedness cannot be collected except out of the property of said Frederick J. Pickel which is involved in this suit; that the said property consists of certain shares of stock . . . ;” that these shares, specifying them, were worth “at least” $12,025; that the transfer of these stocks by Frederick J. Pickel to his father, William Pickel, was fraudulent and made and intended to defraud plaintiff and that as to plaintiff the transfer was “fraudulent and void.” The decree proceeds:

“It is therefore ordered, adjudged and decreed by the court, that this cause be, and the same is hereby dismissed as to the defendant Pickel Marble & Granite Company;
“(5) That the defendant William Pickel may within ten days from the date hereof, pay to the plaintiff all moneys due to her under the aforesaid orders and judgments of the said courts, and unpaid, as heretofore found in paragraph 1 hereof, with interest on all from the date of. maturity of each installment until paid, and also the costs hereof, and the attorney’s fee herein allowed, and may, within said time, execute and deliver to the plaintiff his bond, in the full and just sum of ten thousand dollars, in due form, the form and security to be approved by the court, conditioned for the payment by him to the plaintiff of all moneys to become due to her hereafter under the said final decree of March 15, 1911, and under such modifications thereof or orders supplemental thereto as may he made from time to time by the court having jurisdiction of the cause wherein the same is entered.
“(6) If the said William Pickel shall fail, within said time, to pay said amounts,' and to execute said bond, then, in that case, it is ordered, adjudged and decreed by the court;
“(7) That the said transfers of said stock (described in paragraph 3 hereof), from Frederick J. Pickel to William Pickel, be, and the same are hereby vacated and set aside.
"(8) That said defendants William Pickel and Frederick J. Pickel are each and both of them enjoined and prohibited from transferring or assigning, and from attempting to transfer or assign and from delivering, hypothecating, mortgaging, pledging or encumbering said stock, or any portion thereof, or any certificate or certificates thereof, and from setting up any claim thereto, or to any part thereof of any kind or character against any execution which plaintiff may cause to be issued on said orders and judgments mentioned in paragraph one hereof, or either of them, and levied upon the same, or upon any part thereof; and they and each of them are further enjoined and restrained from obstructing or delaying, and from attempting to obstruct or to delay, by the filing of any notice, third-party claim, bond or other paper, or in any other manner or form whatsoever, any sale under any such execution which the plaintiff may cause to be levied on said stock, or on any part thereof.
“(9) That if the defendant William Pickel shall avail himself of the benefit of paragraph 5 of this decree, and shall well and truly pay the money and execute and deliver the bond, within the time therein limited, then and in that case, and so long as the said William Pickel shall continue to pay the money due to the plaintiff, as and when the same shall become due, to the full amount of said bond,, the plaintiff is enjoined and restrained from suing out any execution or executions to collect said money, or any part thereof. But if and when said William Pickel shall fail to pay any installment of money due plaintiff, as and when the same becomes due, this injunction created by this, the 9th paragraph of this decree, shall be and stand dissolved.
“(10) An attorney’s fee of five hundred dollars is allowed plaintiff’s attorney of record, for which let special execution issue against the shares of stock described in paragraph 3 hereof (or such portions thereof as plaintiff may elect to levy on) unless the defendant William Pickel shall pay said fee in accordance with the terms of paragraph 5 hereof. All other costs are ordered taxed against the defendants William Pickel and Frederick J. Pickel, for which let execution issue.
“ (11) The court reserves jurisdiction of the parties and of the subject-matter of this controversy, and leave is given to all parties hereto to apply to the court, from time to time, for such further orders as may become necessary or proper to enable the plaintiff to collect the moneys found due and to become due to her by paragraph 1 hereof, including the right to move for a reference to take an accounting of the moneys due from William Pickel and the Pickel Marble & Granite Company, in the event it shall hereafter appear that such accounting is necessary to enable plaintiff to collect her claims.”

On June 25, 1911, defendants filed in that ease their motions for new trial. These were overruled on July 26, 1911, and on the same day each defendant filed his affidavit for appeal and on July 29, 1911, an appeal to this court was granted defendants. On July 26, 1911, plaintiff filed a motion to modify the decree, which motion was on July 29, 1911, overruled and the record then contains the following: “Affidavit of Ella M. Pickel (plaintiff) for an appeal to the Supreme Court of Missouri from first decree, and for an appeal to the St. Louis Court of Appeals from injunction order made subsequent to final decree, filed and granted.” On September 25, 1911, plaintiff filed with the circuit clerk in vacation her motion to dismiss her appeal' and on the following' day withdrew her application for an appeal to this court.

Defendants perfected their appeal from the decree, and on May 9, 1912, in this Division, an opinion was handed down reversing the judgment with directions as to the judgment to be entered by the trial court. Motions for rehearing and to modify the judgment were filed. On June 1, 1912, a modified opinion was filed in this court in the case whereby the judgment of the trial court was ordered affirmed except as to the allowance of $500 for attorney’s fees in which particular it was ordered reversed. On June 8,1912, the mandate of this court was received and filed by the clerk of the circuit court of the city of St. Louis.

On June .10, 1912, defendant William Pickel paid plaintiff all sums due her under the decree above set forth, in so far as it was affirmed by this court, and his attorney appeared before the circuit judge, in chambers, after the adjournment of court, and tendered, for approval and filing, his bond in the penal sum of $10,000, properly executed and conditional as prescribed by paragraph five of the decree. On objection by plaintiff’s attorney that court was not in session the bond was lodged with the clerk and the matter went over until June 12, 1912, when it was again called up in open court. At this time plaintiff’s counsel stated he did not object to the form of the bond or question the solvency of the surety. No question as to the genuineness of the signatures was then or is now made.

Written objections to the approval and filing of the bond were made on the grounds (1) that the ten days granted by the decree’for filing the bond had expired and (2) that principle and surety were unsound of mind.

In connection with these objections counsel offered to prove that the property mentioned in the decree of June 24, 1911, was worth over $70,000, but the court refused the offer and on the same day, June 12, 1912, entered the following order:

“Ella M. Pickel v. William Pickel et al. No. 71509 A.
“Now, on this day comes the defendant, William Pichel, by attorney, and presents to the court the bond in the sum of ten thousand .dollars, with Elizabeth B. Pichel as surety, which was lodged by him with the clerk of this court on the 10th day of June, 1912, and moves the court to approve the said bond and order the same filed, and the court having seen and examined the said bond doth order that the same be approved and filed herein, which is now accordingly done.”

On June 14, 1912, plaintiff moved to vacate this order on the grounds that (1) the bond was filed out of time and (2) that William Picket’s failure to file the bond within ten days from the date of the decree misled plaintiff and cut off her right of appeal therefrom and (3) because the court erred in refusing to permit plaintiff to prove the value of the stocks involved. This motion the court overruled. Thereupon plaintiff moved the court to modify the decree itself by striking out of the ninth paragraph the words “to the full amount of said bond” on the grounds that the approval and filing of the bond, without the suggested modification, engrafted on the decree a false construction whereby (1) the liability of defendant Frederick J. Piekel would be and was limited to sums already paid and the amount of the bond: (2) the decree is caused to operate as an injunction against plaintiff without any pleading or evidence warranting such relief, and (3) upon the payment of allowances aggregating $10,000, the excess of the value of her husband’s property in William Picket’s hands is exempted. No evidence in support of this motion was tendered. The motion was overruled and plaintiff appealed.

It is asserted the trial court erred (1) in approving the bond and ordering’ it filed; (2) in excluding evidence of the legal incapacity of principal and surety on the bond; (3) in refusing proof that the stocks mentioned in the decree were worth in excess of $70,000; and (4) in overruling the motion to strike certain words from the decree.

1. In support of his contention that the bond was filed out of time counsel argues (1) that the appeal taken July 29,1911, did not stay that park 0f tbe decree which granted William Pick- ^ el ten days in which to file bond and (2), if it did, nevertheless the bond was not approved and filed until more than ten days had expired after the opinion was filed in this court and there was therefore no compliance, in time, under the decree.

(a) The decree of July 24, 1911, provided that the bond might be filed within ten days and also provided, alternatively, what should be the result of a failure to file the' bond. Within the ten days allowed for filing the bond both plaintiff and the defendants appealed to this court. Defendants’ appeal bond was approved and filed July 29, 1911, five days after the decree was entered. The statutory supersedeas (Sec. 2042, R. S. 1909) became immediately effective and further affirmative action under the decree was stayed.

The insistence that the time granted for filing the bond was a mere matter of grace is bottomed too much on the language of the decree and too little on its real meaning and effect. That' language is permissive in form, it is true, but the effect of the decree was that William Pickel must pay the sums adjudged and give the bond prescribed or suffer designated consequences. The decree was, in fact, alternative and as fully conferred upon William Pickel the right to comply with it by executing and filing’ the bond as it accorded plaintiff the right to execution in case he did not do so. Such was the construction put upon the decree by this court on the former appeal (Pickel v. Pickel, 243 Mo. 1. c. 655) and with that construction we are satisfied. In such circumstances it cannot be said that the mere lapse of time during the life of the supersedeas, by virtue of which the trial court was precluded from acting at all affirmatively, operated to modify the decree to the extent of eliminating from it one entire and complete method it prescribed for its own satisfaction. To hold differently would be to say, in effect, that the trial court intended to offer the permission to file the bond as a mere inducement to defendants to abstain from appealing from the decree — a construction which we think ought not to be adopted unless the language used in the decree is clearly of such effect, nor, perhaps, unless that language makes it imperative. There is no' such case here.

There is ample authority for the conclusion that the time was extended by the supersedeas. [Barnwell v. Marion, 56 S. C. 54; Fenton v. Bank, 27 Tex. Civ. App. 231; Woolfolk v. Bruns, 45 Minn. 96; Ruzicka v. Hotovy, 72 Neb. 1. c. 594; Hohenadel v. Steele, 237 Ill. 1. c. 235, 236.] The decision cited by appellant’s counsel (Ferry v. Bank, 9 Abb. Pr. 100) is not in point. There, after vacating a receivership on defendant’s motion, the trial court gave defendant twenty days in which to pay costs and answer, and, further, granted plaintiff twenty days in which to elect to discontinue, in which event defendant was by the order required to stipulate to answer within thirty days any new complaint plaintiff might file and also stipulate to refer to a designated person such new action for hearing and decision, otherwise judgment in the pending case to go against defendant as by default. Plaintiff appealed. It was held the appeal did not stay the running of the time granted plaintiff in which to elect to discontinue' because (1) under the New York statutes and practice appeals, from interlocutory orders did not operate as a stay and (2) the time granted plaintiff to elect was clearly granted as a matter of grace and not of right. The opinion in that case is that of the trial judge. In neither particular mentioned is this case similar. The appeal was from a final decree and the time granted was granted by and as a part of the decree itself, and constituted a substantial and necessary part of one- method by which the decree provided it might be satisfied.

(b) It is insisted, however, that though the appeal stayed the running of the time allowed, the bond was not actually approved and filed until June 12, 1912, eleven days after the filing of the opinion in the case in this court and, consequently, it must follow it was not filed in time.

This presents the question as to when the supersedeas ceased to operate as a stay. The mandate from this court was filed in the circuit court June 8, 1912, two days before the bond was lodged with the clerk and four days before it was approved in open court and filed.

The case was not simply affirmed by this court but was reversed in part, consequently certain decisions dealing with simple affirmances may be ignored. Further, those cases in which the filing of the mandate in the trial court was waived are not in point. By the statute (Sec. 2089, R. S. 1909) it is made the duty of the clerk of this court to transmit, within thirty days, a copy of its opinion to the court from which the appeal was taken and it has always been the practice to transmit therewith a copy of the judgment of this •court which it is then the duty of the clerk of the trial •court (Sec. 2152, R. S. 1909) to enter in the judgment docket.

The opinion and judgment constitute the mandate of this court, which “is the official mode of communicating the judgment of the appellate court to the lower court.” [13 Ency. of Pl. & Pr., p. 837.] The great weight of authority is that no proceeding can be had, in the absence of waiver, controlling statute or exceptional circumstances, until the mandate has been filed. [Ibid.] Whatever may be said as to the possible effect of defendants ’ filing- bond after the opinion was filed in this court and before the mandate was filed in the trial court, there is ample authority for the conclusion that he was not required to act affirmatively, in the circumstances of this case, until the mandate reached the court below. [Horton v. State ex rel., 63 Neb. 34; Marzen v. People, 190 Ill. 1. c. 86; Barnwell v. Marion, supra; Trowbridge v. Sickler, 48 Wis. 424; Messenger v. Marsh, 6 la. 491.]

Parties are not advised in advance of the "day on which this court intends to decide-a particular case and no formal method of notification to them is prescribed. The notice of the result is given to the trial court itself by the mandate and until that mandate is filed, in a case like this, the trial court is not and cannot be required to proceed and, as the cases cited hold, time granted by the judgment affected by the appeal cannot well be said to begin to run until the party against whom it runs is vested, or revested, with the right to act in the premises. Certainly the weight of authority and, we think, the reason of the thing, supports the conclusion that the stay of proceedings did not terminate until the mandate was filed. This view makes it unnecessary to consider the effect of the pendency of the motion for new trial, since the entire time from the entry of the decree until the filing of the bond, less the time the supersedeas was in force, was less than ten days.

(c) The argument that the effect of the conclusion that the appeal and supersedeas suspended the running of the time for filing the bond in question deprives plaintiff of her right of appeal from that part of the decree which permitted the bond to be filed is not impressive. Plaintiff did appeal, or, at least, take the proper preliminary steps, and then withdrew or dismissed that appeal simply because she assumed the construction of the decreé which she now insists upon to be the correct construction. The effect of the argument is, therefore, that because plaintiff misconstrued the decree in the trial court and, relying on that misconstruction, failed to perfect her appeal, this court must now adopt her misconstruction of it to prevent her losing the benefit of the appeal she dismissed. This does not seem to follow.

(2) It is urged that the property of Frederick J. Pickel in William Pickel’s possession amounts to $70,000 and that the effect of permitting William Pickel to file the $10,000 bond under the decree is to exempt about $60,000 worth of it from plaintiff’s claims. If the property in question was of such great value it is singular that evidence of the fact was not offered on the trial of the suit to set aside its transfer. Regardless of that, however, that question could have been appropriately discussed on the former hearing had plaintiff perfected her appeal.

What the decree was and is and not what it ought to haye been is the question now presented. The same question presented here was the one the trial court passed upon when it approved the bond and ordered it filed and its refusal then to hear evidence of the value of the property was fully justified. It was wholly without relevance to the question as to what the decree meant and whether the’ appeal stayed the running of the time granted. The compentency of such ■evidence on the motion subsequently filed for a modification of the decree it is unnecessary to consider, since no such evidence nor any other was offered on the hearing on that motion, and the order overruling it, in the absence of evidence, was right. It is not necessary to notice the affidavit as to the value of the property filed on July 26, 1911, by plaintiff’s counsel, further than to say it was filed in support of a motion to modify the decree which motion was filed and overruled two days after the decree was entered and neither from that ruling nor the decree did plaintiff perfect an appeal.

3. No evidence of mental incapacity on the part of principal or surety on the bond was offered in the trial' court and, consequently, there is no record pasjs for tbe assignment predicated on the exclusion of such evidence.

This concludes the review of the. errors assigned. Some assumptions as to the effect of the filing of the bond under the decree it is unnecessary to either .adopt or reject. ■ The trial court retains continuing jurisdiction for the purpose of future orders whereby to do justice among the parties.

The judgment is affirmed. Boy, G., concurs.

PER CURIAM. — The foregoing opinion of Blair, •0., is adopted as the opinion of the court.

All the judges concur."


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    GRANITE BITUMINOUS PAVING COMPANY v. ANDREW R. FLEMING, Appellant.
    Division Two,
    June 17, 1913.
    1. STREET IMPROVEMENT: Benefit District: Deeper on One Side of Street Than on Other: Constitutional. A charter provision which, fixes the boundaries of a benefit district at a line to be drawn midway between the street to be improved and the next parallel or converging street on each side thereof, and which requires three-fourths of the costs of the street improvement to be assessed against the private land within the benefit district according to the area rule, is not invalid because the district, laid out according to that rule, extends only 175 feet on one side of the street to be improved and 719 feet on the other; nor is it invalid because the land on the side containing the greater area is vacant and unimproved; nor is such provision unconstitutional. [Following Gilsonite Roofing & Paving Co. v. Fair Association, 231 Mo. 589.]'
    2. -: -:--: Motion to Strike Out Defenses: Admission. A motion to strike out admits the truth of all facts well pleaded, but does not admit conclusions of law or mere matters of opinion. When the pleader asserts that certain alleged facts produce a result which the court, of its own judicial knowledge, knows is not the result or probable result of such facts, such conclusions of the pleader are not presumed to be true. Where the defendant in his answmr, to plaintiff’s suit on a taxbill, issued in payment of the costs of a street improvement, asserted that the improvement is of “no benefit whatever to defendant’s property in question, or of no greater benefit to him, or his property, than that of any other person or property in St. Louis, for the reason that this defendant can make no use of said improved street in connection with his property in question,” the plaintiff, by his motion to strike out that plea, which wras sustained, did not admit the truth thereof. It is within the judicial knowledge of the court that, except in rare cases, the value of town or city property is directly increased by the construction or paving of streets in front of or near to such property. If defendant’s parcel of land is of such a peculiar character that it will not be benefited by paving a street which lies 450 feet from it, the facts which make it an exception to the general rule should have been specifically pleaded.
    3. -:-:-: Other Streets to be Constructed. An averment in the answer to a suit on a tax bill issued in payment of a street improvement, that the city has caused to be surveyed and will cause to be constructed four additional streets between the street which has been improved and a certain other street which was the next parallel street when the benefit district was formed, and that defendant’s land will be specially taxed for the paving of each of said streets, raises no issue which can be considered. The defendant having remained inactive and allowed the city to improve the street, and the contractor having expended its money in improving the street in accordance with its contract, the defendant cannot escape the legal burden which has been placed upon his land as a result of the improvement, even though he might have had a remedy in equity if the officers acted-capriciously and designedly in laying out the benefit district and •opening streets.

      4. -: -: Fixing Boundaries by Ordinance. The boundaries of a benefit district for a street improvement in St. Louis are automatically fixed by charter, at a line midway between the street to be improved and the next parallel ■ or converging street on both sides, and the benefit district cannot be fixed by ordinance.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Affirmed.

      William B. Homer, Roland M. Homer and Augustus L. Abbott for appellant.
    (1) Section 14 of article 6 of the charter of St. Louis is invalid in that it deprives the appellant of his property without due process of law and denies him the equal protection of the law. 14th Amendment of U. S. Constitution; Norwood v. Baker, 172 U. S. 277; French v. Asphalt Co., 181 U. S. 345; Seattle v. Kelleher, 195 U. S. 358; Martin v. District of Columbia, 205 U. S. 139; Raymond v. Chicago U. T. Co., 207 U. S. 20; Spencer v. Merchant, • 125 U. S. 345; Davidson v. New Orleans, 96 U. S. .97; Hager v. Reclamation District, 107 U. S. 701; Walston v. Nevin, 128 U. S. 578; Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. 589; Construction Co. v. Haeussler, 201 Mo. 400. (2) In this case the assessment was not limited to the benefits conferred, but it is admitted that the improvement- in question is “of no benefit whatever to the defendant’s property,” and that it is “of no greater benefit to the defendant than to any other person in the city of St. Louis.” The assessment is manifestly unfair and to enforce the tax bill upon the defendant’s property is to deny him the equal protection of the law. 14 Amendment of U. S. Constitution; Seattle v. Kelleher, 195 U. S. 358; Raymond v. Chicago U. T. Co., 207 U. S. 20; Martin v. District of Columbia, 205 U. S. 139; French v. Asphalt Const. Co., 181 U. S. 345; Davidson v. New Orleans, 96 U. S. 97; Hager v. Reclamation District, 107 IT. S. 701; Norwood v. Baker, 172 IT. S. 269; Walston v. Nevin, 128 H. S. 578; Railroad v. Asphalt Co., 197 U. S. 430; Asphalt Const. Co. v. Haenssler, 201 Mo. 400. (3) The effect of this law as applied in this particular tax bill is not only to make the defendant pay for something which is absolutely of no benefit to him or to his property, and to make him pay not only for the improvement of this street but of probably three or four additional streets, thus making the assessment manifestly unfair, and it being admitted that the property in question applies to tracts of land which have never been platted or laid out in lots, blocks, streets, avenues and alleys, it cannot be held that the provision of the charter had any relation to such a situation as this. Gilsonite Co. v. St. Louis Pair Assn., 231 Mo. 604', and cases supra.

      Sturdevant & Sturdevant for respondent.
    (1) The charter of St. Louis is its fundamental law, and all authority for makiug public improvements is specifically granted therein. Its provisions, adopted by the people of the city under the authority of the Constitution, have all the force of legislative enactments. Wherever authority is given by the charter for the doing of a particular act and the method of doing it prescribed, such authority and method prevail ■over anything to the contrary on the subject that may be provided by ordinance of the municipal assembly -of the city in exactly the same sense that an act of the Legislature prevails over an ordinance of the assembly in St. Louis or the common council in other cities of the State; or as the Constitution prevails over the statute. Section 14 of article 6 of the city charter specifically prescribes the assessment district for any given street improvement. Any act of the municipal assembly attempting by ordinance to change the district so fixed, would be a nullity; and any act of the assembly fixing the same district would be surplusage. So, if the charter has been followed in fixing the assessment district for this improvement, neither an ordinance provision or the absence of one on the subject is of any consequence. See. 14, art. 6, clause 3, Charter of St. Louis; Meier v. St. Louis, 180 Mo. 391; State ex rel. v. St. Louis, 183 Mo. 230; Paving Co. v. McManus, 144 Mo. App. 593. (2) The provision of the city charter, establishing the taxing district for an improvement provides first, that “A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided. This is the general provision applicable in the great majority of instances; and where there are parallel streets on both sides of the one improved, there is no other method prescribed in the charter for laying out the district. Neither the distance from the improvement of the parallel streets or either of them, nor the condition of the interlying land, as to being platted or unplatted/ can in any way affect the absolute rule thus fixed by the charter. All property, which in the judgment of the framers of the charter cannot be equitably assessed under this general plan, is provided for in the exceptions- thereto, noted in the same paragraph and section of the charter; and such general plan, together with the exceptions so noted, comprehends all classes and conditions of property within the city limits, both private and public, and subjects all to a fixed proportion of the burden of street improvement. Par. 4, sec. 14, art. 6, Charter of St. Louis; Collier v. Paving Co., 180 Mo. 362; Construction Co. v. Shovel Co., 211 Mo. 524; Grilsonite Co. v. St. Louis Fair Assn., 231 Mo. 589. (3) Section 14, article 6 of the charter, and the following sections, relating to public improvements of the class in controversy here, are valid enactments of the people acting in a legislative capacity, and a proceeding under these provisions of the charter, conducted in the manner authorized thereby, does not deprive any person of property without due process of law, nor deny to any person the equal protection of the law; and the creation of special taxes, by a proceeding under the foregoing charter provisions, is a rightful evercise of the taxing power of the State. St. Louis v. Fisher, 167 Mo. 660; Fruin-Bambrick v. Shovel Co., 211 Mo. 524; Paving Co. v. French, 158 Mo. 534; Prior v. Construction Co., 170 Mo. 439; Construction Co. v. Railroad, 206 Mo. 179; Railroad v. Paving Co., 197 U. S. 433; Gilsonite v. St. Louis Fair Assn., 231 Mo. 589; Meier v. St. Louis, 180 Mo. 391; Norwood v. Baker, 172 U. S. 269; French v. Paving Co., 181 IT. S. 324; Cotting v. Godard, 183 IT. S. 110; Forsyth v. Hammond, 166 U. S. 506; Spencer v. Merchant, 125 U. S. 345; Parsons v. District of Columbia, 170 H. S. 45; Schaefer v. Werling, 188 H. S. 516; Railroad v. Porter, 210 U. S. 177; Hernán v. Schulte, 166 Mo. 409; Land & Stock Co. v. Miller, 170 Mo. 240; Keith v. Bingham, 100 Mo. 300.
   BROWN, P. J.

Plaintiff sues to enforce a special tax bill in the sum of $243.41 against a strip of land 145 feet wide by 155 feet long owned by defendant in the city of St. Louis, Missouri.

Said tax hill was issued for part of the costs of paving and improving Delmar avenue, a public street running east and west through said city.

Under the charter of St. Louis the cost of improving its streets is taxed against the lots or lands on each side of the street improved. The lands thus classified for taxation are called “benefit districts,” because they are supposed to be benefiited on account of their proximity to the street to he improved. One-fourth of the cost of such street improvements is levied upon the frontage of the property abutting or adjoining the street to be improved, and the remaining threefonrths of such cost upon the area of such lands as fall within the limits .of the benefit district.

The charter fixes the boundaries of benefit districts at a line to be drawn midway between the street to be improved and the next parallel or converging street on each side thereof.

In this case the nearest street on the north side of Delmar avenue is Von Versen avenue, distant 350 feet, so that the assessment district on that side of Delmar avenue was only 175 feet deep; but on the south sidé of Delmar avenue the nearest parallel street is Waterman avenue, distant from Delmar avenue 1438 feet, so that the benefit district on the north side of Delmar avenue is 719 feet deep. The defendant’s land is situated 450 feet south of said Delmar avenue; consequently, it was all included in the benefit district for improving said Delmar avenue, and taxed for that improvement according to its area. Hence the tax bill upon which plaintiff’s judgment is based.

The plaintiff’s petition recites the full performance of all things necessary and requisite to the' issue of a valid tax bill against defendant’s land.

Defendant’s answer, in addition to some facts which he does not now urge for reversal, contains the following allegations (italics are ours):

“1. Defendant further says that there is a parallel or converging street on the north side of Delmar boulevard to fix and locate the district line on the north side of said Delmar boulevard, to-wit, Von Versen avenue, which street is north of and parallel with and distant from the said Delmar boulevard 350 feet, making said northern district line 175 feet north of the north line of Delmar boulevard.
“2. Defendant'further says that if the district line on the south side of Delmar boulevard had been drawn the same distance from Delmar boulevard as the district line on the north line of said street, to-wit, 175 feet south of the south line of Delmar boulevard, and if said district line had been so drawn, this defendant’s property would be wholly without the assessment district, and that if, in drawing the district line south of Delmar boulevard, the district north of said Delmar boulevard is to be disregarded and the district line on the south side of said Delmar boulevard drawn 300 feet south of and parallel with the south line of said Delmar boulevard, then the defendant’s said property would be wholly without the assessment district.
“3. This defendant further states that the northern boundary line of the lot or parcel of land owned by the defendant and above described is a line situated 450 feet south of and parallel to the southern boundary line of Delmar boulevard, and that the northern line of. said Waterman avenue is distant 1438.82 feet south of and parallel with the south line of 'Delmar boulevard, and that the entire tract or parcel of land between the said Delmar boulevard on the north and the said Waterman avenue on the south and DeBaliviere avenue on the east and the proposed western line of Hamilton avenue on the west, is vacant and unimproved property and has never been platted and laid out in lots and blocks, nor has it any streets dedicated therein, but that if the plan of the city of St. Louis is carried out as the same exists immediately east of this tract of land, there loill be laid out through said tract fou,r streets running east and %oest, which streets will be behueen and parallel with the said Delmar boulevard and said Waterman avenue;■ that said streets have already been surveyed.
“4. Defendant further states that the total area of the entire tract laid out as and for the taxing district for the improvement of Delmar boulevard between Hamilton avenue and Clara avenue is 2,059,165 square feet; that of this total area but 398,679 square feet lie north of Delmar boulevard and 1,660,486 square feet lie south of the said Delmar boulevard; that of the three-fourths of the total cost for the improvement of said Delmar boulevard $4438.08 has been assessed against that portion of said district lying north of said Delmar boulevard, and $18,484.50 has been assessed against that portion of the district lying south of said Delmar boulevard.
“5. Defendant further states that the northern boundary of the district north of Delmar boulevard is drawn on and along a line distant 175 feet from and parallel with the northern line of said Delmar boulevard, while the southern line of the taxing district south of said Delmar boulevard is drawn on and along a line distant 719.41 feet south and distant from the south line of said Delmar boulevard.
“6. This defendant states that said special tax bill is excessive, unjust, illegal and void, for the -reason that the district upon which said three-fourths of the cQst of the improvement was levied and assessed as aforesaid is not a lawful district for the levy and assessment of special taxes for the reconstruction of said Delmar boulevard.
“7. Defendant further says that if said special tax bill was issued according to the aforesaid provisions of the charter of the city of St. Louis, and if the district as established for the assessment of the cost of said improvement conforms to the provision of said charter, the said tax bill is nevertheless unlawful and void, because the provisions of the said charter of the city of St. Louis above mentioned are unconstitutional, in this, that said section 14 of article 6 of said charter is in contravention of and violates section 1 of article 14 of the amendments of the Constitution of the United States, in that, and by the operation of the aforesaid provisions of the charter of the city of St. Louis in and through the enforcement of the said special tax bill issued under the authority of said charter, the defendant is and will be deprived of his property without due process of law and will be denied the equal protection of the law, in that defendant’s property is subjected to the lien of said assessment, while other ld’nd on the north of said Delmar boulevard and similar in location to defendant’s property in respect to said Delmar boulevard, is not subjected to the lien of its pro rata share of the cost of said improvement, and in that it subjects defendant’s property to a tax for the improvement of Delmar boulevard which improvement is no benefit whatever to' the defendant’s property in question, or of no greater benefit to him, or his property, than that of any other person or property in St. Louis, for the reason that this defendant can make no use of said unproved street in connection with his property in question.
“8. Defendant further states that if the said district as established for the assessment of the cost of said improvement is a legal and proper district under the law of the State of Missouri, and that if the construction of the law and the city charter of the city of St. Louis shall be adopted to have the meaning exemplified by such district, then the results of sucb construction of such charter and law would have the effect in the city of St. Louis of compelling the authorities of the city of St. Louis to form districts 'upon which assessments would be levied upon one side of a certain street upon 125 feet of ground and upon the other side of the street upon 5000 feet of ground, that is to say, that property upon one side of the street would be assessed for fifty times as much as the property upon the other side of the street for the same improvement; that such a taxation as is shown by this tax bill and as would be exemplified in other parts of the city of St. Louis would render the charter a power through which a property-owner’s property would be confiscated.
“9. Defendant further says that said -tax bill is void for the further reason that said taxing district was not fixed by valid legislation, in this, that said district was not fixed by ordinance as contemplated by law, bnt was fixed, determined, laid ont and established by some person or persons unknown to the defendant and unauthorized by law.”

In the pleadings and plats filed in this cause the street which was improved is sometimes called Delmar avenue, and at other times Delmar boulevard..

Upon the coming in of said answer plaintiff; moved the court to strike out the above quoted clauses thereof, for the reason that said quoted part of said' answer contains only ‘ ‘ conclusions of, law and erroneous constructions of law applicable to this case, which constitute no defense or manner of defense to plaintiff’s action, ’ ’ which said motion to strike out was sustained by the court and defendant excepted. The defendant refused to plead further, and the judgment appealed from followed. The matters pleaded in that part of defendant’s answer which was stricken out tender the only issues relied upon for reversal.

OPINION.

I. The facts and issues in this case are almost precisely the same as in the case of the Gilsonite Roofing & Paving Company v. St. Louis Fair Association, 231 Mo. 589, determined by this ' ' v Court in Banc December 17, 1910. In the last mentioned case the validity of the special tax bill sued on was challenged by a demurrer to plaintiff’s petition, raising the same objections to that tax bill which are pleaded here in that part of defendant’s answer which was stricken out.

The tax bills in litigation in each case were issued under the same provisions of the charter of St. Louis, and the same constitutional provisions, and to a large extent the same decisions were relied upon to establish the invalidity of the tax bills in each case..

In the .ease against the St. Louis Fair Association, supra, the lands of that defendant were unplatted ground (the same as in this case) and the benefit district extended back into defendant’s lands 1947 feet, while in this case the benefit district extended back only 719 feet from the street improved. If it be unconstitutional or unlawful to make the benefit district deeper on one side of the street to be improved than on the other side, then the Fair Association case was a stronger one for the defendant than this, yet the tax bill in that case was- upheld by this court.

In said case of Gilsonite Roofing & Paving Company v. St. Louis Fair Association, Valliant, J., reviewed the authorities relating to the issues which are urged by learned counsel for defendant in this case: Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 524; State ex rel. v. St. Louis, 211 Mo. 591; Collier Estate v. Paving Co., 180 Mo. 362; and Meier v. City of St. Louis, 180 Mo. 391; so it would seem like a useless task to again review the authorities and thereby pad our official reports with a decision which could add nothing to the well-established rules of law in our State.

II. However, the defendant having alleged in his answer that the improvement of Delmar avenue for which plaintiff’s tax bill was issued was of i<no benefit whatever to defendant’s property in question, or of no greater benefit to him, or his property, than that of any other person or property in St. Louis, for the reason that this defendant can make no use of said improved street in connection with his property in question;” and plaintiff having admitted the truth of those allegations by his motion to strike out (Paddock v. Somes, 102 Mo. 226), defendant insists that the issues in this case are different from those heretofore presented to this court in other cases cited.

Briefly stated, his contention is that for the purpose of this case it stands admitted that defendant’s land will not he benefited in any manner by the improvement of Delmar avenue.

It is a settled rule of law that a demurrer admits the truth of all well pleaded facts, but does not admit conclusions of law or mere matters of opinion on the part of the pleader.

When a pleader asserts that certain admitted facts produce a result which the court from its own judicial knowledge knows is not the result or probable result of such admitted facts, are such conclusions of the pleader presumed to be true? We think not. A demurrer admits facts well pleaded, but in the very nature of things it does not admit the truth of conclusions, conjectures or mere matters in the nature of jjrophecy or prediction asserted by the pleader arguendo. (Donovan v. Boeck, 217 Mo. 70; Meek v. Hurst, 223 Mo. 688; 31 Cyc. 333.]

Not only have the people of St. Louis, acting in a legislative capacity, adopted a charter which declares that the paving or improvement of public streets will benefit all property situated nearer to the street improved than to any other parallel public street, but it is within the judicial knowledge of this court that, except possibly in rare cases, the value of town or city property is directly increased by the construction or paving of streets in front of or near such property.If defendant’s parcel of land is of such a peculiar character that it will be injured or not benefited by bringing a paved street within 450 feet of it, the facts which make it an exception to the general rule should have been specifically pleaded so that we could understand them.

If the lands surrounding defendant’s property are unfenced and uncultivated, he may, perchance, pass over them from Delmar avenue and reach his property without obstruction or objection. It seems to be a certainty that if he has no other method of reaching his land he may condemn a private roadway to same, and thus connect his property with an open street. [Sec. 20, Art. 2, Constitution of Missouri, and Sec. 10447, R. S. 1909.]

Under the facts before ns in this case we are not able to agree.to defendant’s assertion that his land was not benefited by the paving of Delmar avenue.

III. The assertion of defendant that the city of St. Louis has caused to be surveyed and will cause to be constructed four additional streets between Delmar avenue and Waterman ave-n^g and that defendant’s land will be 7 # specially taxed for each of said streets, suggests issues which cannot be considered in this case, and upon which we express no opinion. We may, however, he pardoned for suggesting, by way of obiter, that if the officers of St. Louis are designedly and capriciously attempting to open and construct streets in such manner as to place burdens upon plaintiff which he cannot in good conscience be required to bear, he may secure relief by a timely application to a court of equity. There is no such case before ns now. ■

The defendant having remained inactive and allowed the city to let a contract to improve Delmar avenue, and the plaintiff having expended its money in paving and improving that street in accordance with its contract, defendant cannot in this case escape the legal burden which had been placed upon his land as a result of such improvement.

IY. The further contention of defendant that the boundaries of the benefit district for improving Delmar avenue, which benefit district includes plaintiff’s lands, should have been fixed by an ordinance is wholly untenable. The charter v of St. Louis automatically fixes the boundaries of benefit districts at the time contracts for tbo ■construction or improvement of streets are let and tbe tax bills issued- for such improvements. [State ex rel. Paving Co. v. City of St. Louis, 183 Mo. 230, 1. c. 236, and cases there cited.] The officers of a city usually do prepare for their own convenience maps •showing the boundaries of benefit districts. The correctness of such maps depends entirely upon the observance of the mandate of the city charter.

The tax bill upon which plaintiff’s judgment is predicated is legal according to the repeated decisions •of this court, and the judgment for the plaintiff is affirmed.

Faris and Walker, JJ., concur.


author: ROY, C.

text:
    TIMOTHY COTTER et al., Appellants, v. KANSAS CITY.
    Division Two,
    June 17, 1913.
    •CITIES: Contracts: To be in Writing. In 1895 the city of West-port, now a part of Kansas City, passed an ordinance for the con- . struction of sewers. The ordinance provided that the work should he paid for in special taxbills, and that in no event should the city be liable for the cost. The plaintiff contracted to do the work, his contract stating that the city should not be liable for payment otherwise than by issuing the taxbills, and that he himself assumed all risks as to them and took them without recourse against the city. The law giving the city power to build sewers in this manner was afterwards declared unconstitutional. .The work was done, and now plaintiff sues for a balance remaining due upon the taxbills. Held, that there can be no recovery. The contract expressly provided that the city should not be liable, and the city, under the statute then in force, could not be held without a contract in writing.
    Appeal from Jackson Circuit Court. — Hon. R. L. McGune, Judge.
    Affirmed.

      Charles B. Adams, Wash Adams and John L. Riley for appellants.
    (1) The court erred in sustaining the demurrer and dismissing the case. Westport had authority to. construct sewers and pay for the same out of the general fund, under the law governing cities of the fourth class, independently .of the Sewer Act of 1893. The •ordinance was binding and the contract effective, and an obligation to pay for the. work was thereby created, although made pursuant to the Sewer Act of 1893. The valid portions of the ordinance and contract will be permitted to stand and the invalid portions will be rejected. State v. Clark, 54 Mo. 37; Johnson v. Duer, 115 Mo. 366; County Com’rs v. Griswold, 58 Mo. 175; St. Joseph ex rel. v. Wilshire, 47 Mo. App. 125; Endlich on Inter, of Stats., sec. 538; Barber v. Harrisburg, 64 Fed. 283; Maher v. Chicago, 38 111. 267; Hitchcock v. Galveston, 96 U. S'. 341; Shoemaker v. Harrisburg, 112 Pa. St. 385. Under the general law governing citites of the fourth class, Westport had power to con-, struct sewers and drains as an incident to its power to construct and maintain public highways and to preserve the public health. R. S. 1889, art. 5, ch. 30;; "Boyd v. Ward, 85 Fed. 27; 16 Am. & Eng. Ency. Law (2 Ed.), p. 20; 2 Dillon on Mun. Corp. (4 Ed.), secs. 805-806; Cone v. Hartford, 28 Conn. 363; Leeds v.. Richmond, 102 Ind. 372; Fisher v. Harrisburg, 2 Grant ■Gas. (Pa.) 291. (2) Plaintiffs were not bound to know that the law under which the proceedings were had was unconstitutional, but were justified in doing the work .and agreeing to accept the special assessments in pay-' ment, assuming that the city possessed the authority-to pay for the work -with special assessments. Me-' Allister v. Railroad, 74 Mo. 363; Sessums v. Botts, 34 Tex. 349. (3) Westport, being without the authority,' •could not lawfully agree to issue special assessments' in payment for the work; its agreement to that end was the sole consideration for the provisions of the ordinance and contract exempting the city from liability otherwise than by the issue of special tax bills, and the consideration having failed for want of authority, such exemption provisions were void ab initio. Barber v. Harrisburg, 64 Fed. 283; Barber v. Denver, 72 Fed. 339; Chicago v. People, 56 111. 327; Scofield v. City, 68 Iowa, 695; Fisher v. St. Louis, 44 Mo. 482; Oster v. Jefferson City, 57 Mo. App. 493. (4) Under the rule ejusdem generis, the particular class of defects specified in the exemption clause of the contract, such as the lack of a proper petition, against which the city guarded itself from liability, are defects and errors of procedure only, and the general words of exemption in said clause will be treated as referring to defects of the same kind as those specified and will not be taken to include a defect arising from a want of authority to make the assessments. BroomW Legal Maxims (6 Ed.), 625; Vaughan v. Porter, 16 Vt. 266; Cullen v. Butler, 5 M. & S. 461.

      Edwin G. Meservey, W. H. E. Piatt, A. E. Evans and Francis M. Eayward for respondent.
    (1) From a void contract no cause of action can arise whether of quantum meruit or one sounding in damages. Keating v. Kansas City, 84 Mo. 419; "Wheeler v. Poplar Bluff, 149 Mo. 46; State ex rel. v. Murphy, 134 Mo. 548; Unionville v. Martin,- 95 Mo. App. 38; Heidelberg v. St. Francois County, 100 Mo. 76. (2) ■ Appellants, when contracting with the city officers, were bound to know at their peril the extent of the city’s power, and if the contract is one the city had no power to make, it is not binding on the city. Pryor v. Kansas City, 153 Mo. 142; Cheney v. Brook-field, 60 Mo. 53; Mister v. Kansas City, 18 Mo. App. 217; Keating v. Kansas City, 84 Mo. 415; Wheeler v. Poplar Bluff, 84 Mo. 46; State ex rel. v. Murphy, 134 •Mo. 548; Unionville v. Martin, 95 Mo. App. 38; Book v. Earl, 87 Mo. 246; Barnard-v. Knox County, 105 Mo. 382; Sturgeon v. Hampton, 88 Mo. 203; Carroll v. St. Louis, 4 Mo. App. 191. (3) Westport, respondent’s predecessor, could incur no liability on an implied contract because a municipality can only be held upon a written. contract within the scope of its powers or expressly authorized by law; and it can incur no liability originating* in contract, either express or implied or sounding in tort, save on such written contract.' R. S. 1889, sec. 3157; Heidelberg* v. St. Francois County, 100 Mo. 69; Johnson County v. Wood, 84 Mo. 489; Woolf oik v. Randolph County, 83 Mo. 501; Taylor v. School Dist., 60 Mo. App. 372; Schell City v. Rumsey, 38 Mo. App. 264; Crutchfield v. Warrens-burg, 30 Mo. App. 456. (4) For a non-exercise or an erroneous exercise of legislative power a municipality is not liable to one injured thereby. Thornton v. Clinton, 153 Mo. 648; Keating v. Kansas City, 84 Mo. 418; Unionville v. Martin, 153 Mo. 142; Wheeler v. Poplar Bluff, 149 Mo. 729; Ely v. St. Louis, 181 Mo. 729.
   ROY, C.

Plaintiff sued for balance of compensation on contract for building* a sewer. A demurrer to the petition was sustained, and the plaintiff, electing to stand on his petition, has appealed.

Prior to 1897, Westport, a suburb of Kansas City, was a city of the fourth class. The Act of March 18, 1893 (Laws 1893, p. 101) purported to authorize certain cities including* those of the fourth class to construct sewers and pay for the same in special tax bills against the several tracts of land in the sewer district. That act provided (Sec. 13) that such special tax should constitute the only source of payment.

On February 27, 1895, an ordinance of the city of Westport provided for the construction of sewers. Section 4 of that ordinance provided that the work should he paid for in special tax bills; and then provided “And in no event and in no manner whatever shall the city of Westport be liable for and on account of the cost of doing the work hereinafter provided for. ’ ’ On March 25,1895, the contract was made, which recited that it was for making the improvements under the provisions of the above named ordinance. It contained the following:

“X. It is further agreed that the passage of the ordinance herein above referred to and the doing of the work embraced in this contract without any proper petition to the board of aldermen from the real estate owners to have said work done, shall not render the city liable to pay directly or indirectly for such work or any part thereof, otherwise than by the issue of special tax bills, and the said first party shall assume all risk as to the validity of such special tax bills, and take the same without recourse against the city of Westport in any event.”

The work was done in pursuance of the contract and the special tax bills were delivered to plaintiffs, amounting to $9930.63, of which a part was collected on the tax bills, and a balance of $4456.37 remains unpaid.

On December 2, 1897, Westport became a part of Kansas City, -and the latter assumed the valid debts of Westport, in accordance with the Kansas City charter.

The Act of March 18, 1893, was held unconstitutional in Boyd Contracting Co. v. Ward, 85 Fed. 27, decided in 1898, and in Owen v. Baer, 154 Mo. 434, decided in 1899. This suit was begun in June, 1900.

Section 48 of article 4 of our State Constitution provides that the Legislature shall have no power to pay or authorize “the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall he null and void.” Section 3157, Eevised Statutes 1889, which was in force when the contract in hand was made, provides that no “municipal corporation shall make any contract, unless the same shall be within the scope of its powers or he expressly authorized by law, nor unless such contract he made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing,” etc.

We will not discuss the question of the effect of the rule of ejusdem generis on the construction of the tenth paragraph of the statement. The contract in another place provided that the work was to he done under the provisions of the ordinance; and the ordinance provided that “in no event and in no manner whatever” should the city he liable. In Thornton v. City of Clinton, 148 Mo. 648, an ordinance was in effect held to be part of the contract which referred to it. We therefore hold that the contract expressly provided that the city should not, in any event, be liable. We will not decided whether the city of Westport had the power to contract for the payment of the cost of the sewers out of the general funds of the city. We concede it for the purposes of this case. In Fisher v. St. Louis, 44 Mo. 482, the city made a contract for filling certain ponds on private property which were nuisances. The contract provided that the work should he paid for in special tax hills, and that the delivery of such hills should be full payment. It developed that the tax bills were illegal. This court simply said: “The plaintiff had rendered the stipulated service and was entitled to compensation.”

But that was before the adoption of our present Constitution, and before the enactment of the statute under consideration.

The'cases cited by appellant from other States and from the Federal decisions are cases not involving the effect of such statutory and constitutional limitations.

Thornton v. City of Clinton, supra, involved in the main the vital points in this case, and it was held that the city was not liable.

In State ex rel. v. Dierkes, 214 Mo. 1. c. 590, it was held that the city’s power to contract is limited by those constitutional and statutory provisions, and that cases in other jurisdictions do not apply because not affected by such limitations. This court said in the last case cited:. “But grant it that there was an implied power authorizing the house of delegates to make a contract with relator for services to the city, yet, such power to contract, whether express or implied; must be exercised in pursuance of the terms of the statute and city charter quoted, and in this case there is no such contract shown.”

We appreciate the hardships of this case. At the same time we call attention to the fact that both parties to the contract acted in apparent good faith. Both contemplated the possibility that the special tax bills might be invalid; and it was mutually agreed that the city should in no event be liable. The city, under the statute cannot be held without a contract to that effect, and that contract must be in writing. The judgment is affirmed. Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


author: GRAVES, J.

text:
    NATHANIEL S. GIVENS, Appellant, v. EDMOND J. HARLOW et al.
    Division One,
    June 17, 1913.
    1. ATTACHMENT: Service in Another State: Certificate of Deputy Clerk. A personal service of summons in an attachment suit by a sheriff of another State, if the affidavit of the sheriff is certified -only, by the deputy clerk of the court, is pot a statutory service, and does not give the circuit court of this State jurisdiction. And an attempted amendment of such return, by a new affidavit made by the same person who was at the time the first certificate was made but is no longer sheriff, made before and certified by the clerk of the same court, is a nullity. [Following Priest v. Capitain, 236 Mo. 446.]
    2. -: General Judgment: Rendered on Constructive Service. A general judgment in attachment, rendered upon constructive service, is void; and if it carries upon its face the evidence which shows it to be a general judgment, it is void upon its face. And if upon its face it shows it was rendered upon constructive service, it carries the evidence of its own invalidity. And that it is a general judgment against defendant, and not one against his attached property, is shown by this recital: “it is therefore ordered and adjudged by the court that plaintiff recover from defendant the sum of $73.80, being the amount of said note and interest to this date, together with costs of suit, and that execution issue therefor.”
    3. -: -: Constructive Service. Service in another State upon the defendant by a sheriff of such State of a summons ■ issued out of a court in this State, is at most constructive service, and does not authorize a general judgment in attachment.
    4. -: -: Void: Collateral Attack. A void judgment is subject to attack in a collateral proceeding. For instance, it may be shown in a partition suit that the judgment under which a purchaser at the sheriff’s sale under such judgment bought the interest of an heir in the land, was void, and that in consequence the sheriff’s deed was void.
    15. -: -: Cured by Execution: Substituted Service. The fact that only the land attached was sold under execution did not turn the void general judgment into an irregular judgment. Besides, a general and personal judgment cannot be rendered on substituted service.

      6. -: Must Be Both Levy and Service. It is not sufficient that the attachment writ be levied on the land and an abstract thereof filed in the recorder's office; the writ and petition must also be served upon the defendant as an ordinary summons, and that means that, ^when defendant is a non-resident, one form of substituted service must be had — -either by publication, or personal service in strict accord with Sec. 2029, R. S. 1909; and without such service or notification, the writ of attachment does not attach the land.
    Appeal from Daviess Circuit Court. — Hon. Francis H. Trimble, Judge.
    Reversed and remanded (with directions).

      Dudley & Selby and Thomas H. Hichlin for appellant.
    (1) Because of the insufficiency and invalidity of the process, service and return thereof, of the sheriff of Harvey county, Kansas, in the case of G-illihan & Brosins v. H. Lindsey Harlow, and the insufficiency and invalidity, of the levy of the writ of attachment issued in said cause, no jurisdiction was ever obtained over the person of the defendant in that cause, and no-seizure of the res was ever made, and for these reasons no valid judgment was ever rendered, and the execution issued thereunder and the sheriff’s deed based thereon are necessarily invalid and failed to divest title out of H. Lindsey Harlow and vest same in respondent Wilmer G-. Harlow. A further objection to the judgment might be made that the judgment is a general one, and the execution issued thereon is a general -execution. Moss v. Fitch, 212 Mo. 497; Hedrix v. Hedrix, 105 Mo. App. 40;. Typewriter Co. v. Cash Register Co., 156 Mo. App. 107. (2) Secs. 538, 543, 2022 and 2029, R. S. 1899, construed together, required copy of writ of attachment to be served on defendant. (3) No jurisdiction gained over res. Furthermore, there has been a fatal failure to serve the writ of attachment issued in this case, or levy upon and seize . the land as then and now required by law, and this, along with the lack of proof of service on the defendant in Kansas, renders the judgment in the case void and open to collateral attack. The concluding portion of clause 3, Sec. 543, R. S. 1889, now the same as Sec. 2316, R. S. 1.909, then required, as the latter section now requires, that the officer serving the writ of attachment shall give notice to the actual tenants, if any, at least ten days before the return day of the writ, and that he shall state the fact of such notice and the names of the tenants in his return. This was • not done in this case and the return of the officer under the writ absolutely fails to show that it was done. Walter v. Scofield, 167 Mo. 554; Siting v. Hendrickson, 193 Mo. 365; Bank v. Kingston, 204 Mo. 701. (4) The return of the summons issued to the sheriff of Harvey county, Kansas, was not made as required by Sec. ■ 2029, R. S. 1889 (now Sec. 1778, R. S. 1909), and for that reason no jurisdiction was ever obtained over the person of defendant, H. Lindsey Harlow. This kind of service, at best, is nothing but a substituted service, Moss v. Fitch, 212 Mo. 497, and no intendments can be made in favor of official regularity and legality. Gamasche v. Smythe, 60 Mo. App. 164; Stewart v. Stringer, 41 Mo. 401; Hyde v. Goldsby, 25 Mo. App. 29; Gates v. Tusten, 89 Mo. 19; Myers v. McRay, 114 Mo. 377; Wilson v. Railroad, 108 Mo. 588. This fact, taken in connection with'the fact before pointed out that there was no valid levy .on the property, renders the judgment based thereon absolutely void. Mur- , dock v. Hilyer, 45 Mo. App. 287; Adams v. Hicksher, 80 Fed. 742; Russell v. Grant, 122 Mo. 161; Priest v. Capitain, 236 Mo. 451.

      John C. Leopard and Gillihan & Gillihan for respondents.
    Respondent’s contention is that while said return is not sworn to before the proper officer as held by this court in the case of Priest v. Capitain, 236 Mo. 446, yet when the petition and affidavit in attachment were filed and the attachment bond filed and approved and attachment writ issued and property levied upon and an abstract of the attachment thereof filed in the recorder’s office; that then the court had jurisdiction of the res and that any irregularities in the proceedings thereafter did not divest the court of jurisdiction of the res and the return of the sheriff of Plarvey county, Kansas, showing all jurisdictional facts and sworn to by said sheriff (although this court has since held that it should have been sworn to before the clerk himself)1 the court then acquired the power to adjudicate the sufficiency of the proof of service and having decided that it was sufficient a judgment rendered thereon was binding on all the world except the defendant himself, who alone would have the right to have the same reviewed. Such a judgment can only be attacked in a direct proceeding by the defendant himself and never by a stranger. Plardin v. Lqe, 51 Mo. 244; Freeman v. Thompson, 53 Mo. 193; Randall v. Snyder, 214 Mo. 23; Bray v. McClury, 55 Mo. 139; Gray v. Bowles, 74 Mo. 424; Shea v. Shea, 154 Mo. 606. (3) An attack is made on the judgment because a general judgment was rendered and a general execution issued, but this court, in the ease of Burnett v. McCluey, 92 Mo. 230, in which a general judgment was rendered and a general execution was issued, said “If the property levied upon and sold was that and only that actually seized by the writ of attachment, these are but errors which do not render the sale and the deed made thereunder void in this proceeding,” therefore the case of Moss v. Fitch, 212 Mo. 497, and other like cases have no application under'the facts here. Burnett v. McCluey, 92 Mo. 230; Massey v. Scott, 49 Mo. 281; Bray v. Mc-Clury, 55 Mo. 139. (3) Appellant for the first time, in' this court, objects to the return of the sheriff of Daviess county, Missouri, on the ground that said return fails to show that notice was given to the actual tenants, if any. This objection cannot now be raised in this court for the reason that this specific objection was not made in the lower court, that court having' had no opportunity to pass on that objection. This court in a long line of decisions has held that any objection to the introduction of evidence, especially documentary evidence, not made in the lower court will not be considered in this court. Buckley v. Knapp, 48 Mo. 561; Margrave v. Ansmuss, 51 Mo. 561; Morgan v. Joy, 121 Mo. 684; Wilson v. Reeves, 70 Mo. App. 33; Clark v. Conway, 23 Mo. 442.
   GRAVES, J.

This is an action in partition. James Harlow died in 1882, leaving- as his heirs Edmond J. Harlow, Wilmer G. Harlow, James Samuel Harlow and John W. Harlow, the defendants herein, .and Joseph P. Piarlow, Henry L. Harlow, and a widow, Huldah J. Harlow, who are not named as defendants. It appears that the estate of James Harlow had been previously partitioned, and in that proceeding 100 acres of land was set off to the widow as and for her homestead and dower rights, and adjoining this was also twenty acres which was used by the widow, which was likewise not partitioned. Thus there is involved in this case 120 acres of land formerly belonging to James Harlow. The widow died in July, 1908, and this suit followed in November, 1908. In the petition plaintiff claims a two-sixths interest in the whole tract of 120 acres. In other words he claimed to be the owner of the two interests which went by descent to Joseph P. Harlow and Henry L. Harlow. By the judgment plaintiff only recovered the one-sixth interest formerly belonging to Henry L. Harlow in the twenty-acre tract. This he recovered under and by virtue of a deed from Henry L., dated in October, 1908. The deed covered the entire 120 acres, but the trial court held that the interest of Henry L. had previously passed by a sheriff’s deed, and that plaintiff’s deed conveyed no interest in the 100-acre part of the tract. Plaintiff now admits that he is not entitled to the interest of Joseph P. Harlow, and admits that such interest belongs to Edmond J. Harlow, as found by the decree nisi. It thus appears that the sole controversy here is as to who owns the former interest of Henry L. Harlow in the '100-acre tract first set apart to the widow. This interest was adjudged nisi to Wilmer G. Harlow, by reason of the sheriff’s deed. Counsel for the plaintiff in their statement of the case, thus describes the origin of this sheriff’s deed:

“The origin of this sheriff’s deed is as follows:
“On August 24, 1891, the firm of Gillihan & Brosius instituted suit by attachment against H. Lindsey Harlow, who was then a resident of Harvey county, Kansas, causing summons in the ordinary form, to issue to the sheriff of Harvey county, Kansas, attaching to the original summons, as well as -to the copy, a certified copy of the petition filed in the case. This petition was one in the usual and ordinary form on a note for $74, which had been given by the defendant in that suit to the plaintiffs, Gillihan & Brosius. On the same day plaintiffs filed their affidavit in attachment, alleging as the ground therein, the non-residence of defendant, also their bond in attachment, and caused to be issued to the sheriff of Daviess county, Missouri, an attachment writ, and this writ is returned by the sheriff of Daviess county, Missouri, he stating in his return that he had levied on above hundred acres of land, and filed in the recorder’s office of said county an abstract of the attachment writ, but there is nowhere in his return any statement that he has given notice to the tenants on said land, at least ten days before the return day of the writ, nor at any other time, giving the names of the tenants in his return, as then required by clause 3 of section 543, Revised Statutes 1889, and now by section 2316, Revised Statutes 1909, clause 3, nor as a matter of fact was anything of that kind done, nor does the record show it.
“The summons and copy of petition issued to the sheriff of Harvey county, Kansas, as we have stated, was simply an ordinary summons and the petition was the ordinary petition on a note, except that the copy attached shows petition was verified before W. H McClung, clerk, and original is not verified. There was no copy of the summons and writ of attachment, no copy of the bond and affidavit in attachment, nor any other fact therein to notify the defendant that a suit by attachment had been commenced against him and his land levied on tó satisfy the claim of plaintiffs. The sheriff of Harvey county, Kansas, in making or attempting to make, the proof of his service, has the deputy district clerk certify to the return instead of the clerk, as section 2029, Revised Statutes 1889, then .required, and as is now required by section 1778, Revised Statutes 1909. More than seventeen years after this unquestionably void service and return, the circuit court of Daviess county, Missouri, without any notice to the plaintiff in this case or the defendant- in that case, assumes the right to permit this return to be amended, orders the cause of Gillihan & Brosius v. H. Lindsey Harlow to be redocketed, states that E. E. Pollard, sheriff of Harvey county, Kansas, asks leave to file additional amended return of service, grants leave to file additional amended return of service, states that he does do so and files the same in said cause, and continues the cause to pass off the docket, and this purported amended return is now sought to be relied on in this case to cure the admitted invalidity of the former one.
“The absolute invalidity of this amended return and the order purporting to permit it, we hope to show later on in the course of the brief filed in this cause, and, at this time, simply call the attention of this court to one or two facts in connection with it. In the first place, we say the court had no lawful authority to permit it and, even if such was the case, it does not comply with the terms of the invalid order permitting it. The order purports to permit E. E. Pollard, sheriff of Harvey county, Kansas, to file, etc., and further on states that E. E. Pollard, sheriff, amends, etc., when the amended return itself on its face states that E. E. Pollard, a person who ‘was the sheriff on August-28, 1891, of the county of Harvey,’ etc., makes the statement in what purports to be an affidavit before O. L. Hand, clerk of the district court of Harvey county, Kansas. Of course as we have said, there are other and manifest faults that will be pointed out in the brief proper, that absolutely preclude the idea of its possessing any validity, such, for instance that the certificate required by law must state that the officer serving the writ, that the judge or clerk who signs the affidavit and certificate, is the judge or clerk,. as the case may be, of the court of which ‘affiant is an officer, ’ while this affidavit and certificate states that affiant was an officer of the court of which the said O. L. Hand at the time is an officer.”

The whole case turns upon the validity or invalidity of this judgment in the attachment suit. This sufficiently states the case.

I. There are several questions presented by the record in the attachment preceding. These we will discuss in order, but in this connection the recitals of the judgment in that case become material. This judgment reads:

“Now on this day come the plaintiffs in their own proper persons, and the defendant though duly summoned on the 28th day of August, 1891, by the sheriff of Harvey county, Kansas, which return is in words and figures as follows, to-wit': ‘I-hereby certify that I executed the within writ in the county of Harvey and State of Kansas on the 28th day of August, 1891, by delivering into the bands of the within named defendant, H. Lindsey Iiarlow, a copy of the within petition and writ. E. E. Pollard, sheriff of Harvey county, Kansas. I, E. E. Pollard, being duly sworn, upon oath state that the above return made by me is true and that I am duly authorized to serve process as such. E. E. Pollard, sheriff of Harvey county, Kansas. Sworn to and subscribed before me, clerk of the district court of which the said E. E. Pollard is sheriff, and I further certify that said E. E. Pollard is sheriff of Harvey county, Kansas, and that he has the right to serve process in said Harvey county, Kansas. Witness my hand and official seal. Done at my office, this 29th day of August, 1891. Josiah Foltz, clerk district court. (Seal.) By Gr. W. Butt, deputy clerk. Sheriff’s fee serving summons first person 50c, copy 25c, mileage 50, $5; total $6. E. E. Pollard, sheriff Harvey county, Kansas, Newton, Harvey county, Kansas.,’ which return is in conformity with statute and as the law directs, but said defendant fails and neglects to appear and answer to this action, but makes default herein so that plaintiffs’ cause of action remains unanswered and undefended, and said cause being submitted to the court, the court finds that plaintiff’s cause of action is founded upon a promissory note for the direct payment of money, the amount of which is liquidated and certain, it is therefore ordered and adjudged by the court that the plaintiffs recover from defendant the sum of seventy-three dollars and eighty cents, being the amount of said note and interest to this date, with ten per cent interest thereon from date, together with costs of suit and that execution issue therefor, that the attachment be in all things sustained. ’ ’

That the trial court acquired no jurisdiction in the attachment suit by reason of this service in Kansas, as set out in the judgment above, is made clear by tbe very recent ease of Priest v. Capitain, 236 Mo. l. 456, et seq. The Proof of service here involved is practically identical with the proof of service involved in the Priest case, supra. Nor did the circuit court have any authority to permit the amendment of the proof of service as was attempted in this case. Its act in so-doing is and was a nullity. We so ruled in the Priest case, supra. [Vide, 236 Mo. 1. c. 458.] It must be held, therefore, that if this Kansas service, and the subsequent action of the circuit court permitting an amended proof of that service, are the only things which authorized the circuit court to proceed in the attachment suit, then the court was proceeding without jurisdiction. Such rule we clearly announced in the Priest case, supra, which case had our best efforts in outlining the statutory and case law upon the question involved, and should be read in connection with this opinion.

II. It is urged that the judgment in the attachment suit is being collaterally attacked, and that it is good as against such an attack, although it might be subject to a successful attack in a direct proceeding. It must be conceded that this is a collateral rather than a direct attack upon this judgment. For that reason we have set out the judgment in full. This, to the end that we might determine whether it be a void or a mere voidable judgment. This judgment upon its face is a general judgment to our minds. It was-so considered by the court which rendered it and by the parties to that suit, because upon it was issued a general execution rather than the special execution which should have been issued in an attachment proceeding, where there was no personal service upon the defendant. The land was sold under this general execution, and the sheriff’s deed, under which Wilmer G. Harlow claims, is one made after a sale under this general execution. If, as we have concluded, this is a general judgment, then it is void upon its face, because under such constructive service, even had proof of service been good, there is no authority in law for the rendition of a general judgment. This judgment upon its face carries the evidence of its own invalidity as a general judgment. It shows that it was rendered upon constructive service rather than upon personal service. Service of a summons issued by a court of this State in a sister State is at most but constructive service, and does not authorize a general judgment. This we expessly ruled in the case of Moss v. Fitch, 212 Mo. 484, after a thorough review of our case law. That the judgment before us is a general judgment and one against the person rather than the attached property is clear. Note the language: “It is therefore ordered and adjudged by the court that the plaintiff recover from the defendant the sum of seventy-three dollars and eighty cents, being the amount of said note and interest to this date, with ten per cent thereof from this date, together with costs of suit, and that execution issue therefor.” It will thus be seen that there is no special judgment against the land claimed to have been attached, and no special execution ordered, but on the contrary the judgment is against the person, and a general execution directed, which was issued. It is evident that the trial court in the attachment proceeded upon the theory that a general judgment could be entered under the Kansas service. The statute, section 2029, Revised Statutes 1889, then in force, seemingly authorized a general judgment upon such service, and the trial court was evidently so impressed. But of that portion of the statute, in Priest v. Capitain, 236 Mo. 1. c. 457, we thus spoke:

‘ ‘ The latter clause of the section has been held to be violative of constitutional rights, if construed to mean that a personal judgment could be entered upon ■such service. [Moss v. Fitch, 212 Mo. 484, and cases therein reviewed.]”

In Moss v. Fitch, 212 Mo. 1. c. 502, we had a personal judgment upon service of this kind. It was a collateral attack upon that judgment, but we said:

“Prom this it follows that plaintiff’s judgment for ■alimony and all proceedings thereafter as to the execution and sale were absolutely void and she acquired no title to the land by reason thereof.”

In such case the judgment is void and not merely voidable. A void judgment is subject to attack in a collateral proceeding and has always been so held. The absence of jurisdiction of the trial court in that case appeared upon the very face of the judgment itself and was reflected to the world by the very language of the recitations in that judgment. These recitations as to the service made the judgment void and not voidable. A sale under such judgment was void, as well as the deed made in pursuance of such sale.

III. It is urged under the authority of Burnett v. McCluey, 92 Mo. 230, that because only the land .attached was sold, a general judgment was not necessarily void, but only irregular. There is some language in that case lending support to these views, but when the facts are considered the case is not applicable here. In that case there was a valid service by piiblication, whilst in this case there is no valid substituted service, by which the defendant was notified. Presumably in that case, the judgment recited clue service upon defendant by publication, but in this ■case the proof of service and the service itself is set ■out in the judgment and bespeaks the absence of due ■service upon defendant. But after all, the case law of this State does not allow a general and personal, judgment upon any substituted service. [Moss v. Fitch, supra, and cases reviewed therein.]

IV. Next it is urged that inasmuch as the attachment writ was levied upon the land, and an abstract thereof filed in the recorder’s office, therefore the court was possessed of the res, and the judgment is therefore not void. This contention cannot stand. The res must be attached and properly attached, but this is not all. Section 2316, Revised statutes Í909, which has been the law for years, says: “The writ and petition shall be served upon the defendant as an ordinary summons.” The property must be attached, and the defendant notified, is the meaning of this language. If the writ of attachment, which contains a summons, cannot be served personally upon the defendant, then one form of substituted service must be had, i. e., a publication or service personally upon the defendant in a sister State, as was attempted here. The law requires both of these steps to be taken before the court can proceed to render a judgment in an attachment proceeding. In the case at bar it appears that the first step was properly taken, but it also appears from the very judgment itself that there was no valid evidence of the second step having been taken. So that under any theory of the case the judgment in the attachment proceeding was void upon its face, and could be attacked in a collateral proceeding.

From this it follows that the judgment in this case must be reversed, and the cause remanded.with directions to enter judgment for the plaintiff as herein indicated.

All concur.