City of St. Louis ex rel. Stadler v. Armstrong

• Decision Date: 31 March 1866
• Citation: 38 Mo. 29
• Parties: CITY OF ST. LOUIS TO USE JOHN STADLER AND GEORGE J. DECKER, Respondents, v. DAVID H. ARMSTRONG, Appellant.
• Court: Missouri Supreme Court

38 Mo. 29

CITY OF ST. LOUIS TO USE JOHN STADLER AND GEORGE J. DECKER, Respondents,

v.DAVID H. ARMSTRONG, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

This was an action on a special tax bill brought under an act of the General Assembly of 1857. The petition alleged that the defendant was the owner of a certain lot of land in St. Louis; that, under city ordinance No. 4638, Stadler and Decker contracted with the city to do certain macadamizing on Devolsey street, in front of the defendant's lot; that, in pursuance of said contract, said Stadler and Decker did the work and labor, and furnished the materials. “as will fully appear by reference to certificate filed with the petition;” that the amount of said work was assessed as a special tax against said property; and by virtue of sections 1 and 2 of an act supplemental to the several acts incorporating the City of St. Louis, approved January 16, 1860, the defendant is made directly liable to said Decker and Stadler for the same, and that the city engineer issued his certificate, &c.

Plaintiffs prayed for a general judgment against defendant, and not for any special lien against the property.

The answer put in issue the ownership of the property by defendant, as well as all the other allegations of the petition.

The issues made were tried before a jury.

The plaintiffs offered in evidence the tax bill. The defendant objected to the admission of the same in evidence, for the reason that the facts therein certified to ought to be proven aliunde. The court overruled the objection, admitted the certificate, and defendant duly accepted.

The plaintiffs called the city engineer, who stated that he had signed the said tax bill, and that Mr. Meysenberg was special tax clerk; that Stadler and Decker were partners; that the tax bill was issued to them for work done on Devolsey street, which was done under a contract made by them with the city for grading and macadamizing Devolsey street. The contract was also read in evidence. The city engineer also said they did the work in question in this suit at the prices named in said contract, and that the amount charged in the tax bill is the just proportion due on the property described therein.

Plaintiffs then read in evidence ordinance 4638.

The defendant gave evidence tending to prove that the street on which the work in question was done is called and known as Victor street, and rested.

Plaintiffs, in rebuttal, gave evidence tending to rebut defendant's testimony, and this was all the evidence heard.

On motion of plaintiffs, the court gave these instructions, to which defendant duly excepted:

1. The court instructs the jury, that the special tax bill offered in evidence is prima facie evidence of the plaintiffs' right to recover, and the amount that they ought to recover; and the onus lies upon the defendant to show by evidence that he is not liable, or that the plaintiff should recover a portion only of the amount claimed.

2. The fact that the street designated in the ordinance as Devolsey street, is known also as Victor street, does not interfere with the plaintiff's right to recover if the jury believe and find them to be one and the same street.

3. If the jury believe, and find from the evidence, that the property described in the special tax bill adjoins a street called Devolsey street, the fact that said street, or some parts thereof, is called Victor street, will not interfere with the plaintiff's right to recover in this case.

4. If the jury find for the plaintiffs, they will give them interest from the 6th day of January, 1861, at the rate of fifteen per cent. per annum.

The following instructions asked by defendant were refused, and the defendant duly excepted:

1. Upon the whole evidence offered by the plaintiffs, and heard in thi case, they cannot recover against defendant.

2. If the jury find from the evidence that the ordinance 4638 required that the macadamizing authorized to be done by said ordinance should be 25 feet wide, and if the macadamizing done by plaintiffs was only 20 feet wide, they cannot recover.

Other instructions were also refused; the following only were given:

1. Unless the jury find from the evidence that the defendant's property adjoins the south line of Devolsey street, they should find for the defendant.

2. To entitle the plaintiffs to recover, it must appear from the evidence that the property of the defendant is adjoining and fronting the street upon which the work sued for was done, and the materials sued for were used; and unless it so appears from the evidence, the jury should find for the defendant.

The jury rendered a verdict for plaintiffs, and the court thereupon rendered as well a judgment against defendant personally, as also a judgment special against the property described in the petition.

Krum, Decker & Krum, for appellant.

In this instance, the court declared positively that the tax bill read in evidence proved that defendant was...