Compton v. Rasmussen
| Decision Date | 21 November 1910 |
| Citation | 124 S.W. 575,151 Mo.App. 405 |
| Parties | WILLIAM R. COMPTON, Respondent, v. HANS M. RASMUSSEN, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 151 Mo.App. 405 at 408.
Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.
Appeal dismissed.
Matthews & Son for appellant.
(1) While the law permits a prima facie case to be made on the introduction of the taxbills, yet if plaintiff chooses to plead the ordinances, resolution, contract specifications and that they were duly enacted and passed it devolves on plaintiff to prove them and destroys their right to make a prima facie case. "No allegation should be made which the law does not require to be proved." Mark v Cooperage Co., 204 Mo. 261. (2) The city council may by ordinance include in the special assessment for paving macadamizing, etc., the cost of bringing to the established grade said street proposed to be improved; provided the resolution declaring said paving necessary to be done, it also declares that said street, avenue and alley or part thereof shall be brought to the established grade. Laws 1901, p. 65, last part of section 5858; City of Kirksville ex rel. v. Coleman, 103 Mo.App. 222. (3) Grades of a city can be established only by ordinance. R. S., sec. 5858, second division. Meldon v. Trenton, 67 Mo.App. 453; Stewart v. Clinton, 79 Mo. 3. (4) In the laws for paving, curbing and grading under which the work was done, the term established grade is used all through, likewise is it used in the law which gives the right to pave the street, hence before a street can be paved it must be brought to the established grade. See Laws 1901 relative to paving, p. 65, sec. 5858; City of Kirksville ex rel. v. Coleman, 100 Mo.App. 222. (5) An established grade is necessary for many reasons, to determine costs, in order to make a permanent improvement, to locate the paving, etc. State ex rel. v. Judges, 53 N.W. 800; State ex rel. v. District Court, 46 N.W. 549.
B. R. Dysart for respondent.
If the court is inclined to refuse the respondent's motion to dismiss the plaintiff's appeal, and take the appellant's printed transcript as and for an abstract, then it is submitted by the respondent that the appellant has shown no good cause for a reversal of the judgment below. This record shows a substantial compliance with the law, and the judgment of the circuit court ought not to be reversed. It is submitted that all objections and contentions of the appellant are answered by the following cases. Sedalia ex rel. v. Smith, 206 Mo. 346, overruling the case of Sedalia v. Abell, 104 Mo.App. 431; Joplin ex rel. v. Freeman, 125 Mo.App. 717; Joplin ex rel. v. Hollingshead, 123 Mo.App. 602; Bridewell v. Cockrell, 122 Mo.App. 196; Session Acts 1901, p. 63; Session Acts 1903, p. 79; Session Acts 1907, p. 103.
This action involves the validity of certain taxbills for street paving in the city of Macon. The judgment in the trial court was for the plaintiff and defendant appealed.
Plaintiff insists that the appeal was dismissed on the ground that there has been no compliance on defendant's part with the statute and rules requiring a proper abstract to be filed. The point is well taken. The record and proceedings at the trial are quite voluminous, and we have had printed a literal copy of everything that transpired at the trial. Among the principal, if...
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