Billings Special Road District v. Christian County

• Decision Date: 11 April 1928
• Docket Number: No. 26424.,26424.
• Citation: 5 S.W.2d 378
• Parties: BILLINGS SPECIAL ROAD DISTRICT v. CHRISTIAN COUNTY, Appellant.
• Court: Missouri Supreme Court

5 S.W.2d 378

BILLINGS SPECIAL ROAD DISTRICT v. CHRISTIAN COUNTY, Appellant.

No. 26424.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Christian Circuit Court. — Hon. Fred Stewart, Judge.

AFFIRMED.

Omer E. Brown for appellant.

Where money derived from a special tax in a special road district is not demanded in the year levied, held district is not entitled to it. Little Prairie Special Road Dist. v. Pemiscot County, 249 S.W. 600. Must allege right for the thing sued for. Plaintiff states himself out of court in his petition by alleging that the money is spent for the years 1922 and 1923. Kansas City Ry. Co. v. Thornton, 247 S.W. 182. Road district cannot demand more than twenty-five cents and notice for any more than that would be void as to that part. Laws 1913, p. 675, sec. 1, entitled "Funds to be used in Special Districts — apportionment." These notices demand twenty-five-cent levy as per Section 1, Laws 1913, p. 675. Hence no notice is made for the ten-cent unconstitutional levy. Laws 1913, p. 675.

Page & Barrett for respondent.

(1) The court can consider only the record proper because: (a) A ruling of the trial court not assigned as error will not be considered on appeal. Littig v. Heating Co., 292 Mo. 226, 237 S.W. 779; Brungard v. Jaeger, 31 Mo. 504; Lewis v. Hait, 31 Mo. 505. Error must be assigned and shown before a reversal is warranted in a civil case. Hiemery v. Harper, 204 S.W. 723. (b) The bill of exceptions must be signed by the trial judge, and a setting out in the record proper that it was so signed is not sufficient. Cooper v. Maloney, 162 Mo. 684; State v. Watts, 248 Mo. 494. Since there is no bill of exceptions the only question is whether or not the judgment is such as could have been entered upon the issue made by the pleadings. Growney v. O'Donnel, 272 Mo. 167; Scott v. Union Liability Co., 194 S.W. 900. (c) Where a motion for a new trial is set out in the record proper and not in the bill of exceptions with exceptions taken to its being overruled, the court will consider only the record proper. Wank v. Peet, 190 S.W. 88; State v. Revely, 154 Mo. 660; Blanchard v. Darmon, 236 Mo. 416; State v. Ellison, 196 S.W. 1103; Otte v. Wabash Ry., 193 S.W. 290; Bradley-Metcalf Co. v. Dry Goods Co., 198 S.W. 84; Harrison v. Punch, 222 S.W. 132. (d) "The abstracts mentioned in rules 11 and 12 shall be printed in fair type, be paged and have a complete index at the end thereof, which index shall specifically identify exhibits when there are more than one, and said abstract shall set forth so much of the record as is necessary to a complete understanding of all the questions presented for decision." Rule 13; State v. Parrish, 270 S.W. 690; Manuel v. St. Louis Ry., 186 Mo. 499; Hoster v. Vernon County, 150 Mo. 316. "If any appellant in any civil case fail to comply with the rules numbered 11, 12, 13, and 15, the court, when the cause is called for hearing, will dismiss the appeal or writ of error; or at the option of the respondent, continue the cause at the cost of the party in default." Rule 16. (2) A special road district is entitled to all taxes and licenses collected on property in the road district for road and bridge purposes which have been levied by the county court; and upon application of the road commissioner the county court shall issue warrants on the treasurer for the same payable to the commissioners. Sec. 10818, R.S. 1919; Little Prairie Special Road Dist. v. Pemiscot County, 297 Mo. 568; Carthage Special Road Dist. v. Ross, 270 Mo. 76; State ex rel. Blaser v. Mo. Pac. Ry., 276 Mo. 441; State ex rel. Vaught v. Ry. Co., 270 Mo. 251. Mandamus will not lie to compel the county court to place to the credit of road improvements taxes collected when such money has been expended for other purposes, and there is no fund on which the writ could operate. State ex rel. Special Road District v. Holman, 264 S.W. 908. Assumpsit for money had and received is the proper remedy for a road district to recover money illegally paid out by the county, but which belongs to such district. People v. Drummer, 274 Ill. 637; Board of Highway Commrs. v. City, 97 N.E. 280; Straught v. Board of Supervisors, 23 N.E. 552; Soderberg v. King County, 14 Wash. 194; Village of Port Richmond v. County of Richmond, 43 N.Y. Supp. 147. An action for money had and received lies where defendant has received money of plaintiff which in equity and good conscience he ought to pay over to plaintiff. Federal Land Bank v. Ins. Co., 260 S.W. 822; 15 C.J. 581 (36). An action for an accounting will lie in equity against a county and if the county owes the plaintiff will be decreed to pay it. Spydell v. Johnson, 128 Ind. 255.

LINDSAY, C.

This is a suit by a special road district to recover moneys alleged to have been collected as taxes for road and bridge purposes upon property within the district.

The first count asks judgment for moneys collected for the year 1922, and is as follows:

"Plaintiff states that it is and was at all times herein mentioned a special road district of Christian County, Missouri, organized and existing under Article 7 of Chapter 98 of the Revised Statutes of Missouri, 1919, and that the defendant is a political subdivision of the State of Missouri and are capable of suing and being sued as such.

"Plaintiff for its first count and cause of action herein, states that the defendant, by and through its duly constituted officers, at the regular May term, 1922, by its order duly entered of record, levied and caused to be levied on all property, real, personal, and mixed, in Christian County, Missouri, a tax for the year 1922 of ten cents on the $100 valuation, and designated said levy as the `Bridge Tax Levy' and that the said Christian County collected and caused to be collected said taxes pursuant to said levy.

"Plaintiff further states that under and by virtue of said levy there was collected by the defendant county upon property within the Billings Special Road District of Christian County, Missouri, the sum of $1480.06; that timely claim, requisition, and demand for said sum of money was duly and properly made in writing by the commissioners of the Billings Special Road District of Christian County, Missouri, and that the said defendant county has ever failed, neglected, and refused to honor said requisition and demand and to issue a warrant in payment of the funds derived from the levy aforesaid on property within the Billings Special Road District of Christian County, Missouri.

"Plaintiff further states that the defendant county, disregarding the demands and requisitions aforesaid, has spent, diverted, and dissipated said funds, and that the same are not now where they may be lawfully distributed.

"Wherefore, plaintiff prays judgment against the defendant in the sum of $1480.06, and its costs herein expended, and interest from the date of demand."

The second count is for moneys collected in the year 1923, in the sum of $1368, and is in the same form as the first count.

The defendant, after the overruling of its demurrer to the petition, filed answer, which is as follows:

"Comes now the defendant and for answer to the petition of the plaintiff says that:

"1. That the plaintiff herein has no legal capacity to sue the defendant for the tax alleged in the petition, and further says that the tax so levied was unconstitutional and that the tax designated as the `Bridge Tax Levy' is extraneous of the amount of taxes due any special road district by law. Defendant further states that the tax collected or the revenue derived therefrom has been expended by this and the county court preceding on the bridges of Christian County at the discretion of the court.

"2. Defendant further answering says in answer to the plaintiff's petition, alleging that before this action was brought and after said cause of action accrued, if any, this defendant through its duly constituted officers delivered to the plaintiff, who accepted the same, twenty-five cents on every hundred dollars of valuation within said Special Road District, being the fifteen-cent tax and the ten-cent tax both together, of value in full satisfaction and discharge of the amount of the money due the Special Road District aforesaid by this defendant county.

"3. Defendant further answering states that the revenue for which this suit is brought was collected and expended in the years 1922 and 1923, and that same was never legally demanded, or, no protests were ever filed in years the tax was collected and expended and that now these plaintiffs are estopped from the allegations in their petitions.

"And now having fully answered the defendants herein pray to be discharged with their costs."

The reply was a general denial. The plaintiff had judgment on both counts of the petition and defendant was allowed an appeal. Preliminary to a discussion of the merits, counsel for respondent in their brief contend that appellant makes no assignment of errors; that there is no bill of exceptions; that there is no motion for a new trial set out in a bill of exceptions, and that there is no index to appellant's abstract. There is no assignment of errors, and there is no index to the abstract of appellant, which intermingles statements of matters of record, and of exception, points and authorities, testimony in narrative form, and a printed argument.

The appeal is not here under the ordinary short form of transcript authorized by Section 1479, Revised Statutes 1919; nor is there a complete transcript. The appellant has filed here a typewritten transcript of all record entries, beginning with the entry showing the filing of defendant's answer and ending with the entry showing that within the time allowed, its bill of exceptions was duly signed by the trial judge, and filed and made part of the record. The transcript closes with this entry and does not set forth the bill of exceptions. There is no proper abstract of the record. The...