City of Linneus v. Locke

• Decision Date: 11 April 1887
• Citation: 25 Mo.App. 407
• Parties: THE CITY of LINNEUS, Plaintiff in Error, v. MATTIE C. LOCKE, Defendant in Error.
• Court: Kansas Court of Appeals

25 Mo.App. 407

THE CITY of LINNEUS, Plaintiff in Error, v. MATTIE C. LOCKE, Defendant in Error.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

ERROR to Linn Circuit Court, HON. HENRY LANDER, Special Judge.

Affirmed.

The case is stated in the opinion:

E. W WILCOX, J. B. WILCOX, for the plaintiff in error.

I. The finding of the court is against the law. Rev. Stat., sect 4942.

II. The court erred in sustaining a demurrer to the evidence; the petition more than satisfies the statutory requirements, and the proof filled its full measure; the certified tax bill made out a prima facie case; the following authorities abundantly support our conclusion Stifel v. Dougherty, 6 Mo.App. 441; Haegele v. Malinckrodt, 3 Mo.App. 329; Creamer v. Allen, 3 Mo.App. 545; Wand v. Green, 7 Mo.App. 82; St. Louis v. Hardy, 35 Mo. 261; St. Louis v. Clemens, 36 Mo. 468; St. Louis v. Cook, 37 Mo. 44; St. Louis v. Armstrong, 38 Mo. 29; Hunt v. Hopkins, 66 Mo. 98; Neenan v. Smith, 60 Mo. 292; Seibert v. Allen, 61 Mo. 482; Ess v. Bouton, 64 Mo. 105.

III. The court erred in finding for the defendant and not for the plaintiff. Sect. 4942, supra; Neenan v. Smith, 60 Mo. 292; Seibert v. Allen, 61 Mo. 482; Ess v. Bouton, 64 Mo. 105; Hunt v. Hopkins, 66 Mo. 98, supra.

IV. The court erred in refusing to allow plaintiff in error to recall the witness, E. W. Wilcox, and ask him the question: " Are the taxes in suit sidewalk taxes for a sidewalk built in front of the lot described in the certified tax bill read in evidence?" Rucker v. Eddings, 7 Mo. 15; Brown v. Burrus, 8 Mo. 26; Owen v. Riley, 20 Mo. 603; State v. Porter, 26 Mo. 201; Johnston v. Mason, 27 Mo. 511; Dozier v. Jerman, 30 Mo. 216; Seibert v. Allen, 61 Mo. 482; Tierney v. Spiva, 76 Mo. 279.

H. K. WEST, for the defendant in error.

I. The certified tax bill, read in evidence, is not such a tax bill as is contemplated by the statute, and is insufficient to make out a prima facie case. In order to comply with the requirements of the statute, the tax bill must state such facts as will constitute a prima facie case. Rev. Stat., sect. 4942; Carroll v. Eaton, 2 Mo.App. 479; Heman v. Green, 15 Mo.App. 593; Wand v. Green, 7 Mo.App. 82; Hunt v. Hopkins et al., 66 Mo. 98; Myer et al. v. Wright et al., 19 Mo.App. 283.

II. The circuit court did not err in refusing to permit plaintiff to recall the witness, E. W. Wilcox, after the case was closed, and ask him the question: " Are the taxes in suit sidewalk taxes for a sidewalk built in front of the lot described in the certified tax bill read in evidence?" This matter was not inadvertently overlooked by counsel, in the confusion and hurry of the trial, but was omitted because counsel for plaintiff regarded the case as already made out. If the evidence had been admitted, it would not have changed the result, and the court would still have been compelled to sustain defendant's demurrer. Maloy v. Railroad, 84 Mo. 270; State ex rel. v. Leland et al., 82 Mo. 260; Johnson v. Mason et al., 27 Mo. 511. This matter is not insisted on by plaintiff in error, and will not be further considered for that reason.

PHILIPS P. J.

This is an action to recover a special tax, claimed to be owing the plaintiff, a municipal corporation of the fourth class, for the cost of a sidewalk along defendant's property, built by the city.

The petition is in the usual form. The answer, after admitting the corporate existence of plaintiff, and the ownership of the property by defendant, tendered the general issue as to all the other allegations of the petition. To sustain the issues on its part the plaintiff, after proof that E. W. Wilcox was city clerk, read in evidence the following tax certificate:

" STATE OF MISSOURI, )

) SS.

County of Linn, )

CITY COLLECTOR'S OFFICE,

LINNEUS, Mo., May 20, 1886.

Mrs. M. C. Locke, to City of Linneus, Dr.

Being the amount, as herein set forth, of special taxes, assessed for the year 1886, on the following described property, situated in said city, as the same appears upon the tax books of said city, for said year.

Town or addition. Lot Bl Value Sinking fund tax City rev.t'x R.R.int. tax Stre't or sp'c'lt'x Total tax

Guitar's addition $ cts $ cts $ cts $ cts $ cts

to town of Linneus 10 13 18 53 18 53

I, E. W. Wilcox, clerk of the city of Linneus, Mo., hereby certify that the above is a true copy of the original tax bill in the matter of special taxes due on the above described property.

Witness my hand and official seal this May 20, 1886.

[Seal] E. W. WILCOX, City Clerk. "

Plaintiff here rested. The defendant demurred to the evidence, and the court sustained the demurrer. Thereupon the plaintiff asked to recall the witness, Wilcox, and propound to him the following question: " Are the taxes in suit, sidewalk taxes for a sidewalk built in front of the lot described in the certified tax bill read in evidence?"

The court excluded the question, whereupon defendant submitted to a non-suit; and, after an in effectual motion for a new trial, prosecutes this writ of error.

I. This action is based on section 4942, Revised Statutes, which is as follows:

" The board of aldermen shall have power, by ordinance, to levy and collect a special tax on the owner or occupier of property, lot or lots, on any street, lane, avenue or alley within such city, for the purpose of grading, making, paving, guttering, curbing and repairing streets, alleys, avenues, crossings or sidewalks in front of, or along, the same; and if any owner or occupier of such property, lot or lots, shall fail, neglect or refuse to grade, make, curb, gutter, pave or repair such street, alley, avenue, crossing or sidewalk, when required by ordinance, the board of aldermen shall cause the same to be done in the manner and with the material to be designated in such ordinance, at the owner's or occupant's expense, and collect by a special tax bill, which shall be a lien on the property and shall be collected as provided by ordinance; and in any proceeding to collect such special tax bill, the tax bill, or a copy thereof, certified by the city collector or city clerk, shall be prima facie evidence that the laws and ordinances have, in all respects, been fully complied with, and that the amount specified is justly and legally a lien on the property specified and due by the person against whom the same appears charged in said tax bill, and in any suit or proceeding to enforce the collection of such special tax bill, it shall only be necessary for the city to charge in the petition that such an amount is due by the defendant to plaintiff for a certain improvement, specifying the same, made by virtue of certain ordinances, giving their titles and dates of adoption only."

While this statute makes the certified tax bill prima facie evidence of a due compliance, on the part of the city, with the pre-requisite steps to an imposition of such tax, it must be such a certificate as is contemplated by the statute, and not any paper which the board of aldermen, or the pleader, may choose...