Challiss v. City of Atchison , 45 Kan. 22 ( 1890 )

The opinion of the court was delivered by

Horton, C. J.:

An ordinance of the city of Atchison which took effect February 29,1888, attempted to extend the corporate limits of that city so as to include an eighty-acre tract adjoining the city, generally known as “Spring Garden Addition,” described as the north half of the northwest quarter of section number 7, township number 6, of range number 21, in Atchi-son county. On the 14th day of October, 1889, Luther 0. Challiss commenced his action to enjoin the official authorities of the city of Atchison from exercising jurisdiction, over the real estate. He alleged in his petition that the proceedings of the mayor and council of the city of Atchison, in attempting to extend the limits of Atchison city so as to include Spring Garden addition, were without jurisdiction, and void. The trial court, after hearing the evidence, ruled that the annexation proceedings of 1888, set forth in the petition, were immaterial and in no wise affected the status of the real estate. If this had been the only conclusion of law made by the court below, the plaintiff would have been entitled to judgment, because the answer of the defendants admitted the passage, approval and publication of the ordinance complained of, but denied generally all the other allegations of the petition. The district court, however, ruled that by a plat filed on February 20, 1860, the eighty-acre tract in controversy became a part of the city of Atchison as “Spring Garden Addition;” that from that date it had always been embraced within the corporate limits of the city of Atchison, and was a part of such city at the commencement of this action. Therefore the prayer of the petition was denied and judgment rendered in favor of the defendants and against the plaintiff for costs.

It is evident from the record, and especially from the findings of fact of the trial court, that much testimony was presented and considered by the court, not dearly embraced within the issues of the pleadings. The pleadings, however, might be considered as amended so as to embrace the findings found by the trial court. It appears from the findings of fact, that in July, 1867, the owners and occupants of the eighty-acre tract of land denied the jurisdiction of the officials of Atchison city over the real estate, and in 1874, Geo. T. Challiss, one of the owners of the tract of land, commenced his action in the district court of Atchison county against M. Quigg, the county treasurer of the county, and Charles Krebs, the county clerk of the county, and the mayor and council of the city of Atchison, to enjoin and set aside all taxes levied upon the property as lots and blocks since 1867, and also to enjoin the further levy of taxes by lots and blocks upon the real estate. On December 31, 1875, judgment was rendered in favor of the plaintiff and against the defendants, enjoining them from setting up or exercising any right to tax the real estate as lots or blocks. The officials of Atchison city subsequently caused the said real estate to be assessed by lot-and-block subdivisions as within the corporate limits of Atchison city. George T. Challiss commenced another action in 1876 against the county treasurer of Atchison county, and the mayor and council of the city of Atchison, to enjoin the sale of the real estate for such taxes, on the ground that the same was not subject to taxation by lots or blocks, but by acres only, and not subject to taxation within the city of Atchison, but in Shannon township only, and also to enjoin them from further assessing said property by lot-and-block subdivisions or as within the city. On July 25, 1877, judgment was rendered in that action for the plaintiff and against the defendants, and the court decided that the taxation by the officials of Atchison city for 1875 and 1876 was unauthorized, illegal, and void, and enjoined the county treasurer from taking any steps for the collection of the taxes. After that the mayor and council of the city of Atchison did not exercise any control or jurisdiction over the real estate in controversy, until after the adoption of the ordinance referred to in the petition. During all that time the real estate was taxed in Shannon township, and the voters residing thereon voted in Shannon township and not in Atchison city.

There is an inference from the findings of fact that Luther C. Challiss is in privity with George T. Challiss, who recovered the various judgments referred to, but this is not clearly found. It appears that on February 20,1860, George T. Chal-liss was the owner of the eighty-acre tract of land, and that subsequently he platted it as Spring Garden addition. One judgment was rendered on the 31st day of December, 1875, and the other on the 25th day of July, 1877. Luther C. Challiss has been the owner of a part of the eighty-acre tract about ten years. Both of the judgments were rendered more than ten years before the commencement of this action, one judgment being rendered fourteen years before the commencement of this action, and the other twelve years. If the annexation proceedings of 1888 in no wise affected the status of the eighty-acre tract, as ruled by the trial court, then the judgments rendered in favor of George T. Challiss and against the city of Atchison, not having been reversed or vacated, are binding and conclusive evidence against the defendants, not only in favor of George T. Challiss, but also in favor of all in privity with him. If the judgments in favor of George T. Challiss are conclusive and the annexation proceedings are without force, all of the property owned or claimed by George T. Challiss at the rendition of his judgments cannot be regarded as any part or portion of the city of Atchison, under the platting and records of 1860 or 1861.

In this case, this court acts only as a court of appellate jurisdiction, and not a court of original jurisdiction. The trial court, while deciding that the annexation proceedings of 1888 are immaterial, nevertheless decided against the plaintiff. We shall not pass upon the various questions raised and presented in the briefs which have not been ruled upon by the trial court. It will be time enough to consider these questions when the court below has rendered some decision thereon. Under the circumstances, in order that substantial justice may be done to all the parties, we have concluded it best that a new trial should be granted. If the plaintiff in this case is in privity with George T. Challiss, who obtained the judgments referred to, or if such judgments in any way protect this plaintiff against the exercise of authority by the officials of Atchison city, then, clearly, the relief prayed for by him must be granted if the annexation proceedings are immaterial or without any force. We more readily perceive the necessity of a new trial, because the evidence introduced by the parties is not embraced in the record, and we cannot very well review supposed rulings of the trial court which are not contained in the conclusions of law, nor apparently anywhere else in the record presented to us.

The case will be remanded with directions to grant a new trial.

All the Justices concurring.