Smith v. Boese

Ellison, J. — This suit is based upon a special tax bill, issued December 29, 1884, in pursuance of the provisions of article 8, amended charter of Kansas City, 1880. Section a 4 of said article provides “that every [19] such, tax bill shall be a lien on the property therein described, against which the same may be issued on the date of the receipt to the city engineer therefor, and such lien shall continue for two years thereafter, but not longer, unless' suit be brought within the two years from the issue thereof,” etc.' A suit was commenced to enforce the payment of this tax bill in September, 1885, and within the two years. To this suit defendant Elizabeth Boese -was named as a party defendant. It is admitted that defendant Elizabeth Boese owns the property mentioned in the tax bill, subject to the marital rights of her husband, John H. Boese. It is admitted that Elizabeth Boese and John H. Boese were husband and wife in 1876, and have been ever since, residing together in Kansas City; that they have children living who reside with them. The petition to enforce this tax bill did not make John H. Boese a joint defendant to said suit, but Elizabeth Boese was alone named defendant. All the proceedings which were had in said suit, including the taking of judgment in October, 1886, were had while the defendant Elizabeth Boese was named as a party defendant and without her husband having been joined with her. In January, 1889, Elizabeth, joined with her husband, by proper proceeding, had the judgment rendered against Elizabeth alone set aside as having been entered against a married woman in a cause wherein her husband was not made a party. Thereupon, in 1889, an amended petition was filed, making .the husband a joint defendant, and judgment was rendered enforcing the tax bill against the property, excluding the interest of the husband therein. From this judgment the defendant appeals. The question for decision is, when was the suit brought as regards the two years’ limitation in the charter 1 The defendants claim that the suit was not [20] brought, or begun, until after limitation had run, in 1889, when the husband was made a party by the amended petition. The plaintiff contends that it was brought, or begun, in the sense of the charter, when the original petition was filed against the wife alone. Defendants’ contention is, in effect, that bringing the suit against the wife without joining the husband was a nullity, and thereby had not the effect of keeping the tax lien alive beyond the two years’ limitation. We cannot agree to such view. It is everywhere conceded that such irregularity is subject to cure by amendment of the original petition, which is, of itself, a recognition that such original petition was not a void matter, but that it represents a subsisting suit, upon which an amendment can be based, and that after the amendment the original cause, existing, standing in court, continues. It is quite true that an amendment setting up a new cause of action will not relate back to the commencement of the suit so as to save the bar of the statute of limitations as to such new cause of action; but such is not the question before us; here there is no new cause of action introduced, but merely the introduction of a new party, leaving the cause of action as to the first party standing as it stood at the beginning. The original suit then, having been brought within the two years, saves the tax" lien, at least as to the wife’s interest, against which the judgment was taken, notwithstanding the husband was not brought in by the amendment until after the two years expired. We have not been cited to any case presenting this question, but in Latshaw v. McNees, 50 Mo. 381, the petition seeking to enforce a mechanic’s lien against the wife’s property was brought against her alone within the ninety days’ limitation after filing the lien, as is provided by statute. Judgment was taken enforcing the lien. Afterwards, and as in this case, after the [21] limitation bad run, it was asked that tbe judgment be set aside on the ground that the suit was brought and the judgment taken against the wife without joining the husband; this was refused by the trial court. On appeal the supreme court say that it should be set aside and the cause retried on the merits. The question presented here was not raised in that case, and we gather the facts as to dates from what appears conceded in briefs of counsel. Our conclusion is the judgment should be affirmed. All concur.