Brown v. City of Cape Girardeau

• Decision Date: 20 December 1886
• Citation: 2 S.W. 302,90 Mo. 377
• Parties: BROWN and Wife v. CITY OF CAPE GIRARDEAU.
• Court: Missouri Supreme Court

2 S.W. 302

90 Mo. 377

BROWN and Wife v. CITY OF CAPE GIRARDEAU.

Supreme Court of Missouri.

December 20, 1886.

1. MUNICIPAL CORPORATIONS — IMPOSITION OF TAXES — AUTHORITY TO SUE FOR.

The right of a municipal corporation to sue for and to collect taxes depends upon its authority under the statutes, or grant of power by the state, to levy and impose the same.

2. MALICIOUS PROSECUTION — PETITION — INSUFFICIENT STATEMENT OF FACTS — SUIT BY MUNICIPAL CORPORATION FOR TAXES.

Where, in an action against a municipal corporation to recover damages for the malicious prosecution of a suit for taxes, the petition in the case contains no statement of facts sufficient to enable the court to determine whether or not the corporation had or had not the authority to levy and impose and to collect the taxes involved in the suit, it not appearing therefrom what said taxes were for, or when or how imposed, it is fatally defective, and a demurrer thereto will be sustained.

Error to Cape Girardeau common pleas.

Action to recover damages for malicious prosecution. A demurrer to the petition by the city was sustained. Defendant appealed.

L. Brown, pro se.

RAY, J.

The first count of the petition in this case is as follows: "Plaintiffs state that they are now, and for more than 15 years last past have been, husband and wife. Plaintiff states that defendant willfully, maliciously, and without probable cause, instituted, and caused to be instituted, against these plaintiffs, a certain groundless, false, malicious, and vexatious suit in this court, on or about the ninth day of April, 1879, for certain taxes, alleged to be due to and owing by this plaintiff, Theodocia Brown; that said suit was made returnable to the May term, 1879, of this court, and by the statutes in such cases made and provided said suit was triable at said May term, 1879. Nevertheless, plaintiffs state that said action was never brought to a hearing by this defendant, although solicited, demanded, and requested so to do; that thereafter the said city of Cape Girardeau, on, to-wit, January 30, 1884, in term-time of said court, did voluntarily dismiss the same, and so said cause of action had wholly ceased and been determined as aforesaid; that, by reason of said false, malicious and groundless suit, as aforesaid, plaintiff Theodocia Brown hath been put to great trouble, annoyance, and the employment of an attorney, to her damage in a great sum, to-wit, the sum of five hundred dollars, for which she demands judgment." The second count is for damages for the institution of another suit for taxes in the following July, and its allegations are in all respects similar. The answer of defendant was a general denial. The cause coming on for trial, defendant objected to the introduction of any evidence, upon the grounds that the petition did not state facts sufficient to constitute a cause of action, and because a municipal corporation is not liable in damages for the malicious prosecution of civil actions, which objections were sustained and plaintiffs excepted. This ruling of the court is the only error complained of, and the only question now before us.

As between mere private parties, actions may be maintained for...