109 S.W. 1054 (Mo.App. 1908), Cushing v. Powell

Citation:109 S.W. 1054, 130 Mo.App. 576
Opinion Judge:ELLISON, J.
Party Name:FRANCIS J. CUSHING, Respondent, v. LOUIS POWELL, Appellant
Attorney:Eastin, Corby & Eastin for appellant. C. F. Strop and Eugene Silverman for respondent.
Case Date:April 06, 1908
Court:Court of Appeals of Missouri
 
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Page 1054

109 S.W. 1054 (Mo.App. 1908)

130 Mo.App. 576

FRANCIS J. CUSHING, Respondent,

v.

LOUIS POWELL, Appellant

Court of Appeals of Missouri, Kansas City

April 6, 1908

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Eastin, Corby & Eastin for appellant.

(1) The evidence offered by the defendant should have been received. It was admissible under the general denial. State ex rel. v. Rau, 93 Mo. 130; Cavender v. Waddingham, 2 Mo.App. 551; Manufacturing Co. v. Hunter, 87 Mo.App. 60; Kersey v. Garton, 77 Mo. 647; Blatz v. Lester, 54 Mo.App. 285; Hudson v. Railroad, 101 Mo. 13; Cordner v. Roberts, 58 Mo.App. 440; White v. Middlesworth, 42 Mo.App. 368; Northrup v. Insurance Co., 47 Mo. 443; Greenway v. James, 34 Mo. 326; Jones v. Rush, 156 Mo. 364.

C. F. Strop and Eugene Silverman for respondent.

(1) If the owner of the lot named desires to show either the imperfect execution of the work, or that the doing thereof was not properly authorized, or any other fact which goes to the legality or extent of the charge, he can not do so by pleading the general issue as was done in this case but he must specially plead the facts constituting such defense in his answer so as to notify the plaintiff of the grounds upon which he relies to defeat the enforcement of the taxbill. Vieths v. Planet Company, 64 Mo.App. 207; Carthage v. Badgley, 73 Mo.App. 123; Huling v. Stone Co., 87 Mo.App. 359; Construction Co. v. Hutchinson, 100 Mo.App. 294; Menefee v. Bell, 62 Mo.App. 659; Guinnotte v. Ridge, 46 Mo.App. 254. (2) The above quotation is so amply supported by the cases cited, being the uniform ruling upon taxbill cases in this state, as to be deemed settled under the rule stare decisis and requires no further comment. The appellant in his brief admits that this is the settled rule in the State but seeks to have the court overthrow this long line of decisions and establish a new rule of evidence, and is the only point urged by appellant.

OPINION

[130 Mo.App. 577] ELLISON, J.

--This action was brought to enforce a special taxbill issued for grading streets in the city of St. Joseph, a city of the second class. The judgment in the trial court was for the plaintiff.

The sole question is one of pleading. The plaintiff pleaded the making and issue of the taxbill, giving the date and contents thereof. He also duly alleged that defendant owned the property charged. The bill was filed with the petition. In short, the petition met the requirement of section 5664, Revised Statutes 1899, of the charter of cities of the second class. The answer was a general denial and under such answer the defendant offered in evidence certain court records necessary to authorize the proceeding, which were in relation to...

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