City of St. Louis ex rel. Lohrum v. Coons

• Decision Date: 31 October 1865
• Parties: CITY OF ST. LOUIS TO THE USE OF JOHN LOHRUM, Respondent, v. MARY E. COONS, Appellant.
• Court: Missouri Supreme Court

37 Mo. 44

CITY OF ST. LOUIS TO THE USE OF JOHN LOHRUM, Respondent,

v.MARY E. COONS, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Circuit Court.

The petition alleges, 1. That the defendant is the owner and in possession of a certain lot particularly described. 2. That the City of St. Louis, by authority of ordinance 4517. (not set out nor described or cited in any way,) contracted with said Lohrum for the macadamizing of a street, for the improvement of said street in front of and adjoining defendant's property. 3. That said Lohrum performed said work in a skillful manner in accordance with his contract. 4. That said work, under laws then existing, was chargeable to the property adjoining and in the vicinity thereof. 5. That the city engineer had charge of said work, and when the same was fully completed, computed the cost thereof, and assessed it as a special tax against the adjoining property fronting on said work; also charging each lot of ground in proportion to the frontage thereof with the cost of constructing, reconstructing and repairing the intersections of the next adjoining streets, alleys and other public highways in a manner by said office deemed just and equitable. 6. That the just proportion of said work assessed as aforesaid and chargeable to the property of the defendant was the sum of $153.49. 7. That the city engineer, being the officer in charge of said work. made out a certified bill of his assessment for each lot against the owner thereof, and a certified bill for the said sum of $153.49 against the defendant as owner of the lot described, and delivered the same to the said John Lohrum, which is filed with the petition. 8. That by force of premises said bill became a lien and has not been paid.

The petition concludes with a prayer for judgment, with fifteen per cent. damages, the penalty provided by the act; and also prays that said judgment be made a special lien on the property.

The answer puts in issue every material allegation of the petition. Upon the trial the only evidence offered by the plaintiff was to prove the signatures of the city engineer and tax clerk to the certificate dated February 18, 1861; also that the city engineer had charge of all the work of the kind specified in said certificate, and read said certificate in evidence. The defendant duly objected and excepted to the admission of the certificate. This was all the evidence heard in the cause. The defendant upon this evidence asked the court to declare “that upon all the evidence offered by the plaintiff and heard in the case, he was not entitled to recover in this action against the plaintiff.” The court refused the instruction, and the defendant excepted. The plaintiff filed a motion for a new trial; also filed a motion in arrest of judgment, for these reasons: 1. Because no cause of action against the defendant is stated in the plaintiff's petition; 2. Because, upon the pleadings and proof in the case, the plaintiff is not entitled to judgment as rendered by the court.

Krum & Decker, for appellant.

I. The instruction asked by the defendant should have been given, and its refusal was error. This instruction is tantamount to a demurrer to the evidence. It admits every fact and every comclusion that legitimately can be drawn from the facts established in evidence in the case. The whole evidence does not make a case against the defendant.

Admitting, for the purpose of the argument, that the petition states a cause of action against the defendant, yet the evidence adduced does not prove the case stated. The material averments which constitute the gist of the action, as stated in the petition, are that the defendant owned the real estate fronting on the street mentioned; that under the authority of ordiance 4517, the City of St. Louis contracted with John Lohrum to furnish the materials and do the work in question, and that he furnished the same, and that the city engineer computed the cost of said work, and certified the amount thereof in the form of the certificate mentioned, &c., &c. These material averments are traversed by the answer. The plaintiff relied on the force and effect of the engineer's certificate. By statute it is made prima facie evidence of the validity of the charge.

The city engineer can only make a certificate of this kind in a case where authority is given by the city council to make a contract for materials and labor, &c., and a contract is made in pursuance of such authority. In this case the plaintiff did not produce in evidence the authority to make the contract in question, nor the contract itself. Upon the existence of these depended the authority of the city engineer to make the certificate in question. The existence of the alleged contract and the authority to make it cannot be presumed, but must be proved.

II. It cannot be claimed that it is prima facie evidence of anything not stated in the certificate itself. At best, it can only be claimed that it is prima facie evidence of the facts stated in the certificate. It does not state that defendant is the owner of the property.

The Circuit Court of St. Louis county has no jurisdiction in cases of this kind. This is a suit to enforce a lien upon real estate--this is patent on the face of the plaintiff's petition. The St. Louis Land Court has exclusive jurisdiction in such cases. (R. C. 1855, p. 1592.)

Wœner, for respondent.

I. There was no error in refusing defendant's instructions. The bill given in evidence states: 1. That the defendant is owner of the property therein described. 2. That certain work, also described, was done by John Lohrum. 3. That this work was done under authority, or ordinance. 4....