City of St. Joseph v. Davenport
| Decision Date | 28 February 1874 |
| Citation | 55 Mo. 572 |
| Parties | THE CITY OF ST. JOSEPH, Appellant, v. CHARLES W. DAVENPORT, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court.
Chandler & Sherman, for Appellant.
I. The appeal in the case at bar has the effect of certiorari and none other. (County of St. Louis vs. Lind, 42 Mo., 348; Lacy vs. Williams, 27 Mo., 280; Lewis vs. Nuckolls, 26 Mo., 278; County of St. Louis vs. Sparks, 11 Mo., 202.)
Boggs vs. Brooks, (45 Mo., 232) is not in conflict with the appellant's position. There the act expressly refers to a “trial anew;” no such language occurs here.
B. F. Loan, and Strongs & Hedenburg, for Respondent.
1. The act authorizes a trial de novo, in the appellate court. It declares, sec. 7, “that the appeal shall be in the same manner, and to such courts as appeals are allowed from judgments of justices of the peace.”NAPTON, Judge, delivered the opinion of the court.
This case presents only a single question, depending for its solution upon the construction of an act of the legislature approved Feb. 5th, 1864, entitled “an act to amend the charter of the City of St. Joseph.” After providing for a publication of the delinquent list of taxes and apportionments due the city, the 4th section provides for a delivery of this list by the collector to the recorder of the city, accompanied with the collector's affidavit that it is a true statement of the unpaid taxes due the city, and properly apportioned on the real estate therein named; and it is also required to be accompanied with proof of the publication of notice in the newspaper as required in former sections. The recorder is then, after a certain lapse of time, authorized to receive testimony in regard to the proper levying, apportionment and delinquency of the taxes, and persons interested are allowed to appear and contest these matters, and then the recorder is authorized to render a general judgment against the whole or such part of the real estate, and the owners thereof, known or unknown, upon said list, as in his opinion the said city shall be entitled to, with interest and a penalty and costs, and such general judgment shall be considered and held as a separate judgment, as regards each distinct piece of real estate and the taxes and apportionments against it. This judgment is then declared valid and binding, and the exact form in which the recorder is ordered to render it, is given in the act, and it is declared conclusive evidence of the regularity and correctness of the levying of the taxes, and making the apportionments therein mentioned, and that the same as therein stated, are due and unpaid, and also of all proceedings in reference to said taxes and apportionments prior to the rendition thereof, with this proviso: “That any person directly interested in any real estate, against which a judgment has been so rendered, may appeal from said judgment, so far as the same concerns any of the real estate in which he has an interest, within ten days from the date thereof, and in the same manner and to such courts as appeals are allowed from judgments of justices of the peace in civil cases, and provided also, that the party so appealing, shall pay to the recorder the costs of a transcript at the same rate that justices of the peace are allowed for transcripts; and such transcript shall only contain so much of the record in the cause as applies to the real estate of the party appealing; and provided further, that if said party so appealing shall not prosecute his appeal with effect and without delay, the appellate court shall affirm the judgment of the recorder with costs, and with a reasonable fee for the attorney of the city which shall be included in the judgment of such appellate court; which said judgment so affirmed shall from date bear interest at the rate of ten per cent. per annum, and shall be a special lien upon the real estate, &c., and shall be collected as other special judgments of such appellate courts are.”
The 8th section of the act also gives this right of appeal to the attorney of the city in the same terms as previously given to the owner of the land, but exempts the city from giving bond, and further requires “that no more of the record be set out in the transcript by the recorder, than may be necessary to try and determine the question in...
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