Cushing v. Powell
| Decision Date | 06 April 1908 |
| Citation | 109 S.W. 1054,130 Mo.App. 576 |
| Parties | FRANCIS J. CUSHING, Respondent, v. LOUIS POWELL, Appellant |
| Court | Kansas Court of Appeals |
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.
--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 the assessment of damages and benefits and authorizing the city to proceed with the grading of the street. The court ruled that no evidence of that character could be received under a general denial; that it should have been specially pleaded; and gave a peremptory instruction to find for the plaintiff.
The section of the charter just cited reads, that such taxbill "shall, in any action thereon, be prima-facie evidence of the validity of the bill, of the doing of the work and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bill; Provided, that nothing in this section shall be so construed as to prevent any defendant from pleading in reduction of the bill any mistake or error in the amount thereof, or that the work therein mentioned is not done in a good and workmanlike manner."
The law of pleading is well established in this State that defenses which are denominated new matter and which must be specially pleaded are only those matters which have arisen since the cause of action arose. There is no such thing as "new matter" to that which never had legal existence. So it is well said that "A defendant is required to plead affirmatively only matters in the nature of confession and avoidance, that is matters which, though the statement in the petition may be true, would nevertheless defeat the action, as for example, release, payment, accord and satisfaction." [Jones v. Rush, 156 Mo. 364, 57 S.W. 118.] If a cause of action has not existed, the proper answer is a general denial and any evidence which will show that it never had legal existence is admissible under such denial. [Greenway v. James, 34 Mo. 326; Hudson v. Railroad, 101 Mo. 13; Northrup v. Insurance Co., 47 Mo. 444.] Thus in an action for damages for non-performance of a written contract, if the contract was valid, but had in some way been discharged, that would be new matter; but, if it was forged, the forgery would not be new matter and need not be pleaded. A showing of forgery would be a showing that the alleged cause of action never existed and hence is fully covered by a simple denial. Whatever is necessary for a plaintiff to prove in order to make out his case is met by a general denial. There may be different modes of proof, there may be inferences or presumptions of one thing from proof of another, but whatever a plaintiff must make out in order to obtain a judgment is met by a denial.
In this case it was necessary for plaintiff to prove that he had a valid lien subject to enforcement against defendant's property. It took, of course, several proper steps or legal proceedings to finally take the form of a taxbill as a valid lien on the defendant's property. The omission of these would prevent the proceeding ripening into a valid taxbill and lien--would show that the lien and bill never had arisen or been brought into existence. Therefore a general denial should let in such evidence.
It is no answer to this position to say that the taxbill itself is prima-facie evidence of its validity and therefore that all proper proceedings were taken. The charter above quoted so declares; but, after all, it is evidence introduced by the plaintiff of the regularity of all the proceedings anterior to the taxbill. The holder of the bill by legal intendment alleges the several steps necessary to a taxbill and its regularity, by alleging the issuance of the bill, and he proves this by introducing the bill. The fact that the statute shortens his pleading and his proof by making one allegation and one instrument of evidence stand, for the other requisites does not, and reasonably could not, change the rule under discussion.
In our opinion the identical question has been decided by the Supreme Court. [State ex rel. v. Rau, 93 Mo. 126, 5 S.W. 697.] That was an action for delinquent taxes where the statute provides what the petition shall show, and wherein it is provided that the taxbill shall be prima-facie evidence that the amount claimed is just and correct, thus making a prima-facie case for the plaintiff. The answer in that case besides containing a general denial, set up specially certain facts which invalidated the bill in part. The plaintiff did not file a reply to that part of the answer and defendant contended that it stood admitted. The Supreme Court refused to sustain him;...
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