Coulter v. Phoenix Brick & Construction Co.

BROADDUS, P. J.

This is a suit in equity by several property-owners of the city of Albany, a city of the fourth class, to cancel certain taxbills issued by the city against their property for costs of grading, paving, guttering and curbing parts of certain streets in said city upon which their properties abutted. The decree Avas in favor of the plaintiffs. There are various grounds alleged, upon which plaintiffs rely for a cancellation of the taxbills, among Avhich are that the resolution adopted by the city council did not describe the work, or specify the materials for construction, either directly or by reference to any other paper or record; and because the Avork Avas not completed according to the contract.

The resolution is silent as to description of the proposed work and of the materials of Avhich it is to be composed. The most recent expression on the question is by this court in Barber Asphalt Co. v. O'Brien, 128 Mo. App. 267 , 107 S. W. 25 , where it is held that where *234 the resolution does not state the nature of the improvement, subsequent proceedings are invalid for lack of jurisdiction. And such was the holding in Kirksville v. Coleman, 103 Mo. App. 215 , Smith v. Westport, 105 Mo. App. 221 . The defendants rely on the holding in Bridewell v. Cockrell, 122 Mo. App. 196 , as a modification of the rule as stated in the cases referred to. It is true Broaduijs. Judge, who wrote the opinion expressed the view that there was nothing in the statute expressly requiring that the resolution should mention the material or the plans and specifications for the- improvement, but that such an inference might be drawn from its language. The reference in that case was to section 5860 instead of 5859 as it is printed. The court however adhered to the ruling in City of Kirksville v. Coleman, supra; and that the resolution should state in what manner it was proposed to improve the streets. As the resolution in that instance referred to the.specifications to be furnished by the city engineer it was upheld on the ground that they became a part thereof. “A description by reference to a definite object or thing is, on the face of it, definite.” [McChesney v. Chicago, 73 N. E. 368 .] The courts of other States hold that the preliminary resolution declaring it necessary that certain streets of a city should be improved should substantially inform the public of the kind and character of the intended improvement. [Williamson v. Joyce, 74 Pac. (Cal.) 290; Mason v. Sioux Falls, 51 N. W. (S. D.) 770.] It must be conceded that the decisions of this court have been consistent on the question. Therefore we do not feel it our duty to reconsider it as we are earnestly requested by the defendants to do for the reason that adherence to established precedents is a cardinal principle in jurisprudence.

There was evidence that the work was not done according to the contract; that the bricks were not put down properly; that they were not of the right kind; *235 that the base on which they were laid was not properly prepared; and that the sand used was not suitable for the purpose. There Avas evidence also that the curbing Avas not composed of the kind of material required by the contract. On the side of .defendants the evidence tended to shoAV that the work and material used were in substantial compliance Avith the stipulations of the contract.

There is nothing in the decree to show upon what theory the court decided the case, but it might be upheld not only on the ground of the defect in the resolution to which Ave have alluded, but.also because the defendants had failed to do the work as provided by the contract. [Heman v. Gerardi, 96 Mo. App. 231 ; Traders Bank v. Payne, 31 Mo. App. 512 .] The taxbill evidently included Avork for bringing the street to a grade, but as no resolution was passed by the council declaring such work necessary and describing the Avork, the taxbill for that part of the cost is also void. Other objections are made to the taxbills and certain objections to the different items they contain, but as the plaintiffs were not entitled to recover for the reasons given it is not necessary to further incumber this opinion.

The cause was tried at the December term,. 1905, of the court, and taken under advisement by the court and continued. Before the succeeding March term, 1906, one of plaintiffs, George F. Peery, died, at Avhich time an order of revival was made in the name of his executor, unless good cause be shoAvn against the revivor at the next term and the cause was continued. At the next term of the court plaintiffs filed a motion to set aside the order of revival and for judgment nunc pro tunc as of the date of December 8, 1905, the date on which the cause was originally submitted. The court sustained the motion and set aside the said order and rendered judgment nunc pro tunc. This action of *236 tlie court is alleged to be erroneous on tbe ground that tbe court bad no power to set aside an order made at a prior term. And because tbe cause was undetermined at tbe time of the death of tbe plaintiff Peery and no judgment could be entered without a revival of tbe cause.

“Where a party to a suit pending an appeal dies after its submission to the court, tbe judgment may be entered as of tbe day of submission.” [Sargent v. Railway, 114 Mo. 348 .] In Mead v. Mead, 1 Mo. App. 247 , a judgment of affirmance was entered as of tbe day on which the cause was submitted by reason of tbe death of a party between that day and tbe delivery of tbe opinion. And such was tbe procedure in Bank v. Shine, 48 Mo. 456 . Under tbe sanction of these cases tbe court was justified in rendering a nunc pro tuno order.

Finding no error in tbe trial the cause is affirmed.

All concur.