Opinion
No. 21398.
November 20, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, EMORY H. WRIGHT, J.
Dwight M. Smith, Jr., George L. Walker, Kansas City, for appellant.
Sherman E. Cabiness, St. Joseph, Walter A. Raymond, Kansas City, for respondent.
This is an appeal from a judgment in favor of respondent in a suit brought by appellant on a special tax bill to foreclose the lien thereof.
The suit was originally instituted in 1935. It was not brought to trial until September 8, 1949. That trial resulted in judgment for plaintiff which, on appeal, was reversed and remanded. Buchanan v. Cabiness. Mo.App., 221 S.W.2d 849, 852. A new trial in circuit court resulted in judgment for defendant, which is the case before us.
In the record of the prior appeal we set out the pleadings and evidentiary facts in detail to which reference is invited. We will not here go into great detail and will state only such facts as we deem necessary for a determination of the particular issue presented.
While this suit was pending the Legislature enacted the Land Tax Collection Act, Laws Mo. 1943, pp. 1029-1062, Mo.R.S.A. § 11201.1 et seq. In September, 1945, the collector of revenue for Jackson County filed a suit under that Act against the lot in controversy, to recover general state, county, and city taxes, then more than four years delinquent. Judgment of foreclosure was had in that case on February 23, 1946. Thereafter, defendant compromised said judgment, paid the amount due thereon, the judgment was set aside and, on January 4, 1947, the case was dismissed. The tax bill herein sued on was not included in the aforementioned suit; nor did plaintiff (appellant) appear or file any pleadings therein prior to its dismissal; nor has he, since, filed any pleadings in said case or taken, caused to be taken, or sought to take any action in that suit, or any action whatever under the provisions of the Land Tax Collection Act.
His position here is that, since his suit was pending when the Land Tax Collection Act became law, and since the judgment rendered in the suit that was filed thereunder was compromised, the judgment set aside, and the suit dismissed, he is in no wise affected by those proceedings, and may prosecute the present suit to final judgment and foreclosure.
In our opinion, rendered in the prior case, supra, we discussed at length the provisions of the Act applicable to the facts in this case. During the course of our opinion we said: "Tax bills, general or special, which are at least four years delinquent, must be foreclosed according to the terms of the Act. (Sec. 4)" We discussed the meaning and effect of Section 20 of the Act, and held that all pending suits to collect taxes against parcels sued on by the collector must be consolidated with said collector's suit, either by inclusion therein or by answer thereto; that if any such collector's suit be dismissed as to the lien of any tax bill, such dismissal shall be without prejudice, and the holder may bring suit within one year thereafter, but not later. We held that, under Section 52 of the Act, as amended, any tax suit pending at the time the Act took effect may be prosecuted to judgment and sale "but not after a petition is filed against such parcel of real estate, under and pursuant to the provisions of this Act." We further held that the instant suit was stayed upon the filing of the petition by the collector and, "if pursued further, it must be consolidated with the collector's suit"; and that the claim herein was neither paid nor was it adjudged barred (by foreclosure).
The judgment was invalid and could not stand, it having been rendered in a proceeding not originally filed pursuant to the Act, or consolidated with a suit thereafter instituted by the collector under the Act. We, in effect, so held, and reversed the judgment. However, we could not determine from the record whether the collector's suit had been dismissed or whether it was still pending. On the theory that the collector's suit might then be pending, the cause was remanded in order to give plaintiff an opportunity to consolidate same with the collector's suit, if he had such right under the surrounding facts and circumstances. We did not hold that he had any such right. We were wholly unable to determine his rights in that respect; and we remanded the cause so that evidence touching the subject might be taken and adjudication had.
Under the record now before us it appears that the collector's suit was finally dismissed January 4, 1947. The Act requires that all tax bills delinquent more than four years be foreclosed (if at all) in proceedings under the Act. It is now too late for him to take any effective steps thereunder.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.