City of Joplin v. Freeman

• Decision Date: 03 June 1907
• Citation: 125 Mo. App. 717,103 S.W. 130
• Parties: CITY OF JOPLIN ex rel. KEE v. FREEMAN.
• Court: Missouri Court of Appeals

103 S.W. 130

125 Mo. App. 717

CITY OF JOPLIN ex rel. KEE v. FREEMAN.

Kansas City Court of Appeals. Missouri.

June 3, 1907.

Rehearing Denied June 24, 1907.

1. MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS— SIDEWALKS—TAX BILLS—ACTION— COMPLAINT.

In a suit on a special tax bill against an abutting property owner for the laying of a sidewalk, the bill was not fatally defective because it did not state that the work was done by virtue of an ordinance.

2. SAME—IMPROVEMENTS—RESOLUTION OF NECESSITY.

Sess. Acts 1901, pp. 63, 64, c. 49, § 5858, Rev. St. 1899 [Ann. St. 1906, p. 2962], relating to street improvements in certain cities, provides that the resolution declaring the paving and macadamizing necessary shall also declare that the street, etc., shall be brought to the established grade, and the cost thereof included in the special assessment for paying for such paving or macadamizing, and section 5859 (page 2964) declares that when the council shall deem it necessary to pave, macadamize, gutter, curb, grade, or "otherwise improve" the roadway of any street, etc., or any part thereof within the limits of the city for which a special tax is to be levied, the council shall by resolution declare such work or improvement necessary and shall publish the resolution, etc. Held, that such sections did not require a resolution of necessity prior to the construction of sidewalks along a portion of a street.

3. SAME—CONTRACT—BID—ACCEPTANCE.

A city had a general sidewalk ordinance declaring that, if the council desired to accept any bids offered for the construction of sidewalks, the same might be accepted by a vote of a majority of all the members of the council; the yeas and nays being entered on the journal. Held that, where the council adopted an ordinance accepting a bid for the construction of certain sidewalks in question, such ordinance constituted a legal acceptance of the contractor's bid, though the yeas and nays were not entered on the journal.

4. SAME — COMPLETION OF WORK — REPORT — EFFECT.

Where a municipal contractor for the construction of sidewalks had completed the work in accordance with the contract, a special tax bill issued to him therefor was not invalidated by the fact that the report on the completion of the work was not signed by the city street committee, as required by a city ordinance.

5. SAME—ABUTTING OWNERS.

Where a sidewalk was constructed on the street space reserved therefor, which space abutted defendant's lots, and defendant also held title to the center of the street, subject to the public easement, his lots abutted the sidewalk within an ordinance, requiring the sidewalk to be constructed at the expense of "abutting owners," though there was a space between the edge of the sidewalk and the lot line.

6. WITNESSES—PRINCIPAL AND AGENT—HUSBAND AND WIFE—COMPETENCY OF HUSBAND.

Where, in an action against a wife on special tax bills for the construction of sidewalks, the husband testified that he looked after his wife's property, and that she told him to look after the contract in question for the construction of the sidewalks, the performance of such work was not within the scope of his agency, and he was therefore incompetent to testify that the cement used in the work was not properly mixed.

7. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — CONTENTS OF TAX BILLS—IMPROPER ITEMS—DEDUCTION.

Where tax bills issued for the construction of sidewalks at the expense of abutting owners contained charges for work other than sidewalk construction, the court properly purged the tax bills of the cost of such extra work, and rendered judgment for the balance without interest.

8. HUSBAND AND WIFE—AGENCY—APPOINTMENT OF HUSBAND.

It is competent for a wife to constitute her husband her agent to look after her property.

9. WITNESSES—HUSBAND AND WIFE—PROOF OF AGENCY.

A husband is a competent witness to prove his agency for his wife to look after her property.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by the city of Joplin, on the relation of A. J. Kee, against C. D. Freeman. From a judgment for plaintiff, defendant appeals. Affirmed.

Horace Merritt, S. H. Claycomb, and Mercer Arnold, for appellant. Grayston & Graham and Thomas Dolan, for respondent.

BROADDUS, P. J.

The petition contains four counts. Each count is founded upon a special tax bill issued to the plaintiff on June 13, 1905, in payment for the construction of sidewalks on the west side of Amander avenue, in the city of Joplin, and in front of four lots owned by the defendant. The trial resulted in judgment for plaintiff, from which defendant appealed.

Among the assignment of errors it is contended that the petition does not state a cause of action. The petition, after stating that the city of Joplin was and is a municipal corporation under the laws of the state and having all the powers and subject to all the duties and responsibilities imposed by law on cities of the third class, proceeds to state that on June 13, 1905, said city by its proper officers duly authorized so to do issued to plaintiff herein a "tax bill as follows," which is followed by inserting a copy of the tax bill. The statement of plaintiff's cause of action is similar in each count of the petition.

It is argued that the petition is fatally defective because it fails to state that the work out of which the tax bill originated was done by virtue of an ordinance. In Irvin v. Devors, 65 Mo. 625, it is held "that, in a suit upon a special tax bill for paving a sidewalk in front of defendant's lot in said city [St. Joseph], a petition which does not allege that the work out of which the tax bill originated was done by virtue of an ordinance * * * is defective. * * * This is an important and material allegation, and constitutes the very basis upon which the right of recovery is built." In Vaughan v. Daniels, 98 Mo. 230, 11 S. W. 573, the question arose on the effect of a judgment in a suit on a tax bill for delinquent taxes. The court held that "it is the petition in a tax suit, and not the tax bill which must set out the cause of action." In the first case named it does not appear that the charter of the city of St. Joseph, under which the contract for the work was made, contained any provision that the special tax bills should in an action thereon be prima facie evidence of the regularity of the proceedings for such special assessments of the validity of the bills, of the doing of the work, and furnishing the materials, as is contained in the charter governing the city of Joplin. The latter case was a suit to enforce the collection of taxes assessed against real estate. The petition failed to describe the real estate. The tax bill, however, contained such description. The statute in such cases required that a description of the land should be included in the petition. In a recent opinion of this court we had occasion to review the former decisions on the question, wherein we held that they did not govern cases of this character, and a petition similar to the one at bar was sufficient. City of Joplin ex rel. v. Etta J. Hollingshead (Kan. App.) 100 S. W. 506 (not yet officially reported). In addition to what is there said we will add that, as a general rule, a pleading that contains all the allegations that the plaintiff is required to prove in order to make out his case ought to be sufficient. The tax bill set out in the petition contains all the allegations necessary for the plaintiff to recover.

Defendant contends that the tax bills are void because the city council failed to pass a preliminary resolution...