— This is a proceeding to enforce the payment of certain benefits assessed against lots 21 to 25, inclusive, of city block 2954, in a condemnation suit heretofore prosecuted to a final judgment by the city to widen Iron street from Michigan avenue to Grand avenue, under ordinance 16758. The defendant, the-Annex Eealty Company, owns the fee, which is subject to a deed of trust that is held by the other defendants. The condemnation case was begun on November 14,-1892, the several steps anil proceedings' taken and had therein were strictly in conformity to the requirements of the law, and the judgment therein on February 6, 1894, was regular and legal on its face. The defendants did not pay the benefits that were assessed against their said lots by that judgment, and thereupon, on July 10, 1900, the city instituted this proceeding. The petition is in five counts and is quite lengthy, setting out each step that was taken in the condemnation case. The answer admits that the city is a municipal corporation, and that it is vested with full power as alleged in the petition to open and establish public highways, but denies each and every other allegation of the petition, and deniesthat the plaintiff is entitled to any judgment. The answer then pleads that this proceeding is barred by the five-year statute of limitations (being sec. 6775, E. S. 1889, now 4273, E. S. 1899). The case was tried by the court, a jury being waived, and resulted in a judgment for the plaintiff. The bill of exceptions recites that the plaintiff introduced evidence sustaining all of the allegations of fact contained in the petition, among which was the report of the commissioners, which *66showed that there was no assessment for benefits to the public generally made against the city of St. Louis, and that the defendant declined to introduce any testimony. From the judgment the defendants appeal.
I.
The judgment of the circuit court in this case was rendered prior to the decision of this court in Eyssell v. St. Louis, 168 Mo. 607, and. the brief of counsel for the defendant in this case consists chiefly of a re-argument of the points which were adjudicated in the Eyssell case, and especially as to the defense of limitation. The conclusion reached by this court in the Eyssell case was that a judgment in a condemnation case to open or widen a street by which special benefits were assessed against property within the benefit district, was not barred by the five-year statute of limitations, but that the judgment in such a case, like any other judgment, was barred only by the ten-year statute of limitation, and that the city could proceed within said ten years to enforce the judgment. The whole question was fully examined at that time, and the conclusion then arrived at was carefully and deliberately announced, and notwithstanding the able argument of counsel for the defendants in this case, no good reason is apparent for changing the conclusion arrived at in the Eyssell case. It follows that the defense of the statute of limitations is not well taken.
II.
It is contended, however, that in the Eyssell case this court held that in a proceeding of this character the judgment in the condemnation case ‘ ‘ settled all controversies between the parties, as to liability, extent and nature of' liability, in fact of every kind and character of question, except the validity and regularity of the proceeding, and the question of the payment and satis*67faction of the judgment, ’ ’ and therefore under this rule, the defendants are entitled to defend in this proceeding on the ground that the judgment in the condemnation case did not assess any benefits to the public against the city.
'There are several reasons why this contention is untenable in this proceeding:
First. Because no such defense was made in the circuit court, and no such point was specifically called to the attention of the court by the answer or in the motion for a new trial, and therefore it is not open to review in this court. [Alexander v. Hayden, 2 Mo. 211; Boyse v. Burt, 34 Mo. 74; Claflin v. Sylvester, 99 Mo. 276; St. Louis v. Sieferer, 111 Mo. 662; Burdoin v. Trenton, 116 Mo. 358.]
Second. The question of whether the city should be charged with benefits was a question of fact to be determined by the trial of the condemnation case, and the action of the court in that case on that question was a matter of exception and error, which could only be reviewed on appeal or writ of error, prosecuted in the manner prescribed by law. None of which was done. The judgment in the condemnation case, therefore, is final and unappealed from, and foreclosed all such questions as well to assessments against the city as to assessments against the property-holder. [St. Louis v. Rankin, 96 Mo. 497; Michael v. St. Louis, 112 Mo. 610; Buddecke v. Ziegenhein, 122 Mo. 239; Eyssell v. St. Louis, 168 Mo. 1. c. 619.]
Third. Such objections do not go tO' the validity or regularity of the judgment, and the decision in the Eyssell case was not intended to convey any idea that they could be litigated anew upon any such theory.
The judgment of the circuit court is right and it is affirmed.
All concur, except Robinson, J., absent.