City of Bevier v. Watson

• Decision Date: 05 June 1905
• Citation: 113 Mo. App. 506,87 S.W. 612
• Parties: CITY OF BEVIER v. WATSON.
• Court: Missouri Court of Appeals

87 S.W. 612

113 Mo. App. 506

CITY OF BEVIER v. WATSON.

Kansas City Court of Appeals. Missouri.

June 5, 1905.

CITIES — CONSTRUCTION OF SIDEWALK — ACTION ON TAX BILL — PLAINTIFF — WAIVER OF OBJECTION.

1. Rev. St. 1899, § 5992, relative to cities of the fourth class, provides that, when a city shall receive no bids for construction of a sidewalk, it may construct it at its own expense, and shall keep an account of the expenditure; and present it to the alderman for assessment, and the abutting lots shall be liable for the cost, as reported to the aldermen by the officer or committee having charge of the matter, and special tax bills shall be issued therefor, and shall be collected in the same way as other special tax bills provided for in the article of which such section is a part. Section 5986 provides that suits on other tax bills shall be brought in the name of the city, to the use of the holder thereof. Held that, where a city builds a sidewalk, the tax bills are to be issued to the committee or officer designated by the

city to take charge of and superintend the work, and that suit thereon should be in the name of the city, to the use of such committee or officer, as holder.

2. Under Rev. St. 1899, § 598, providing that defendant may demur to the petition when it appears therefrom that plaintiff has not legal capacity to sue, and section 602, providing that when this does not appear on the face of the petition the objection may be taken by answer, and, if the objection be not taken either way, it shall be deemed waived, objection that an action on a tax bill for construction of a sidewalk by a city was brought in the name of the city, which is entitled to the money when collected, instead of in the name of the city, to the use of the holder thereof (an officer of the city), as provided by sections 5986 and 5992, is waived by not raising it by demurrer or answer.

3. The street commissioner, directed by ordinance to make an estimate of the cost of a sidewalk, is a "proper officer," within Rev. St. 1899, § 5985, providing that, before the aldermen shall make a contract for building a sidewalk, an estimate of the cost shall be made by the city engineer or other proper officer.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by the city of Bevier against Edward Watson. Judgment for defendant. Plaintiff appeals. Reversed.

T. E. Francis and A. E. Park, for appellant. Dysart & Mitchell, for respondent.

ELLISON, J.

This is an action on a special tax bill issued on account of laying a sidewalk in Bevier, a city of the fourth class. When the trial of the case was opened, defendant objected to any evidence on the ground that the suit was not properly brought. The trial court sustained the objection, and plaintiff took a nonsuit, with leave. A motion to set aside the nonsuit being overruled, plaintiff has brought the case here.

When an attempt was made to let a contract, no one bid for the work, and in consequence the city itself built the walk, as is provided it may. Section 5992, Rev. St. 1899. Tax bills were then issued to the city of Bevier, and this suit was brought in the name of the city as plaintiff. The objection made by the defendant is that the suit should have been brought in the name of the city, to the use of the city collector. The section of the statute just referred to does not expressly say to whom the tax bill shall be issued when the work is done by the city. But it does provide that such bill "shall be collected in the same way" as other tax bills. The provision for the collection of other tax bills is found in section 5986, whereby it appears that suits for tax bills shall be "brought in the name of the city to the use of the holder thereof." To properly understand the question, we will set out section 5992. It reads as follows: "Whenever the city shall advertise for bids for the construction of any new sidewalk of any kind, or for the construction of new sidewalks in the place of sidewalks condemned, and shall receive no bids therefor, the city may proceed to construct or reconstruct any such sidewalks at its own expense, and shall keep an accurate account of the amount expended for labor and material, including grading and filling opposite each lot or piece of ground, and present the same to the board of aldermen for assessment, and each lot or piece of ground abutting on the sidewalks constructed or reconstructed shall be liable for the costs thereof, as reported to the board of aldermen by the officer or committee having charge of the matter, and special tax-bills shall be issued for the amount thereof, and such tax-bills shall be as valid in all respects whatever as the other special tax-bills provided for in this article, and shall be collected in the same way." It is apparent that the city designates a committee or some city officer to take charge and superintendence of the construction of the walk; that such committee or officer should keep an accurate account of the amount of money expended, and report it to the board of aldermen for assessment against abutting property. Our view is that the city would then issue the tax bills against the several pieces of property to the officer or committee (as the case may be)...