ON OPINION TO MODIFY. Counsel for appellants (the city and the comptroller) have filed a motion in which they ask us to modify our opinion so as not to foreclose to the city the right to collect interest upon a benefit judgment ultimately affirmed on appeal in a case where the city took its appeal from the judgment "only because the judgment debtor did so."
We concede that in a case where the property owner should first sue out his appeal from a benefit judgment, it could not be said that the city was primarily responsible for the prolongation of the litigation where it took its own appeal at some subsequent date. However this does not mean that the city may join in appealing from such a judgment without forfeiting its right to interest pending the disposition of the appeal.
The fallacy in appellants' position is that there is no provision in our code for one party to appeal because his adversary has already done so, but to the contrary, the right of appeal is extended only to a party who is "aggrieved" by the judgment (sec. 1018, R.S. Mo. 1929 [Mo. Stat. Ann., sec. 1018, p. 1286]), and no appeal can be allowed except upon an affidavit reciting that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is "aggrieved" by the judgment or decision of the court (sec. 1020, R.S. Mo. 1929 [Mo. Stat. Ann., sec. 1020, p. 1295]).
Consequently, when the city appeals from a benefit judgment in its favor, it can only do so upon the ground that it is aggrieved by such judgment; and so long as it holds itself out as aggrieved and denies the correctness of the tax imposed by the benefit judgment, it may not at the same time say that the tax is in force and due so that the property owner is in default for its nonpayment. *Page 217
The Commissioner accordingly recommends that appellants' motion to modify the opinion be overruled.