Opinion
No. 21475.
January 8, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOHN R. JAMES, J.
Sherman E. Cabiness, St. Joseph, Walter A. Raymond, Kansas City, for appellant.
Cooper, Neel, Sutherland Rogers and Wallace Sutherland, all of Kansas City, for respondent.
This is a suit to enforce special tax bills. Plaintiff procured a judgment on February 20, 1950, in the aggregate amount of $4,939.33, and intervener appeals.
The petition herein was filed on April 8, 1935. On October 31, 1939, George F. Millard was substituted as party plaintiff, he having acquired by assignment title to the tax bills involved. On February 11, 1947, K. A. Cabiness was permitted to intervene in 18 other suits wherein said Millard was substitute plaintiff, and upon motion of intervener, alleging that common questions of law and fact were involved, all of said suits were consolidated.
Subsequent to the institution of the above suits the Legislature enacted the Land Tax Collection Act, Laws Mo. 1943, pp. 1029-1062, R.S. 1949, § 141.210. Pursuant to that Act the Collector of Revenue for Jackson County, on September 28, 1945, filed suits against the lots in controversy to recover taxes then more than four years delinquent. These suits are referred to by the parties as "Land Trust Suits."
At the trial it was stipulated and agreed between substitute plaintiff (Millard) and intervener (Cabiness) "that Land Trust Suits were filed against all the properties in question; that the substitute plaintiff (Millard) did not file answers in said Land Trust Suits, and that the substitute plaintiff's tax bills were not included in said suits nor in the judgment rendered therein; that said judgments were rendered in said Land Trust Suits against said lands on account of the regular municipal, state and county school taxes; that there was no sale under said judgments; that the said taxes were settled and compromised by the intervener, purporting to be the record title owner, and upon the motion of the intervener said judgments were set aside and said suits dismissed as to all the parcels of land involved in these suits on or about January, 1947, and that the substitute plaintiff has not filed any suit at the relation of the county collector, and that no motion has been filed to set aside the dismissals of the aforesaid suits."
A case on all fours with this case has recently been before this court. The trial of that case resulted in a judgment for plaintiff. We held that the judgment could not stand, it having been rendered in a proceeding not originally filed pursuant to the Land Tax Collection Act, or consolidated with a suit thereafter instituted by the collector under the Act. But, because we could not tell from the record whether the collector's suit had been dismissed, or whether it was pending, we did not reverse the case outright. Buchanan v. Cabiness, 240 Mo.App. 829, 221 S.W.2d 849. A new trial of that case resulted in a judgment for defendant and the case again came to us. On November 20, 1950, our second opinion was handed down. Buchanan v. Cabiness, Mo.App., 235 S.W.2d 96. We found that the record there disclosed that the collector's suit had been dismissed on January 4, 1947, and affirmed the judgment of the trial court. We held that "the Act requires that all tax bills delinquent more than four years be foreclosed (if at all) in proceedings under the Act." Under this holding the judgment in the case at bar must be reversed. It is so ordered. All concur.