Crone v. Mallinckrodt

• Citation: 9 Mo.App. 316
• Parties: CHARLES C. CRONE, Respondent, v. EMIL MALLINCKRODT, Appellant.
• Decision Date: 03 November 1880
• Court: Missouri Court of Appeals

9 Mo.App. 316

CHARLES C. CRONE, Respondent,

v.EMIL MALLINCKRODT, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 3, 1880.

1. Where a petition states a cause of action, its defects of statement are cured by verdict.

2. Where the work for which two special tax-bills are issued is distinct, that the ordinance and contract were the same does not necessitate one bill for the whole work.

3. Where the facts alone can furnish a basis for applying a charter provision, and the evidence is not preserved, and there is no admission of the facts in the pleadings, the question will not be reviewed in the appellate court.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

MARSHALL & BARCLAY, for the appellant: The petition does not state a cause of action.-- Irvin v. Devors, 65 Mo. 625; Saxton v. Beach, 50 Mo. 488. The court below had no jurisdiction of the cause.-- The State v. Campbell, 62 Mo. 585; Pate v. Pate, 6 Mo. App. 49; The State v. St. Louis, 67 Mo. 113; The State v. St. Louis, 56 Mo. 277; Sheehan v. Gleason, 46 Mo. 100; Haegele v. Mallinckrodt, 46 Mo. 577. The facts stated in the petition will not support the judgment.-- City v. Clemens, 49 Mo. 552; McGrath v. Allen, 49 Mo. 552; Newman v. Smith, 50 Mo. 525.

IRWIN Z. SMITH and JACOB KLEIN, for the respondent: Where the petition states a cause of action, its defects are cured by verdict.-- Pomeroy v. Benton, 57 Mo. 531; Priest v. Bircher, 6 Mo. App. 565; Burdsall v. Davies, 58 Mo. 138. And a motion in arrest would not be sustained in such a case.-- Corpenny v. Sedalia, 57 Mo. 88. In examining the petition, the court will construe the same liberally under the statute.-- Board, etc., v. Woods, 6 Mo. App. 590. The allegations concerning the ordinance and contract are sufficient.-- St. Louis v. Hardy, 35 Mo. 261; St. Louis v. Coons, 37 Mo. 44. This court will presume, after verdict and judgment, that all essential facts were proved.-- Berthold v. Insurance Co., 2 Mo. App. 311; The State to use v. Meyer, 2 Mo. App. 413; Bowie v. Kansas, 51 Mo. 454; The State ex rel. v. Sullivan, 51 Mo. 522.

HAYDEN, J., delivered the opinion of the court.

This is a petition based upon special tax-bills issued against a lot of ground belonging to the defendant, for the improvement of two alleys between which the property lies, in block No. 1206 of the city of St. Louis. The petition contains two counts. The first point made by the defendant arises upon the record proper, and involves the question whether the petition states a cause of action.

It is clear the petition would be bad upon demurrer. The ordinance is not properly pleaded. It is not averred that the ordinance was passed by the Municipal Assembly and approved by the mayor of the city of St. Louis. The allegation is that “the city of St. Louis, by authority of an ordinance entitled ‘An ordinance to improve alleys in city block number twelve hundred and six,’ approved August 24, 1878, and numbered 10,854, which said ordinance had been duly recommended by the board of public improvements of said city, as required by law, and under contract No. 214, contracted with the plaintiff's assignor for the paving of two alleys, running north and south in city block No. 1206, from Mallinckrodt Street southwardly as far as open, and between Second Street and Broadway, with stone on edge,” etc. It is further averred that, “under the provisions of the Charter of the city and of the ordinance, the cost of the work was chargeable as a special tax and lien upon and against all property adjoining such completed improvements, and upon and against each lot of ground so adjoining, worth such proportion of the whole cost of said work as the number of linear feet of such lot adjoining such completed improvement bears to the whole number of linear feet of property so adjoining; that Duffy faithfully performed and completed the work in a skilful and workmanlike manner, as required by said contract, and to the satisfaction of the proper officer of the city of St. Louis in charge thereof; and that thereupon the president of the board of public improvements of the city, having computed the cost of said work on the western alley in the block, assessed the same upon and against the property adjoining the work, in the manner required by the Charter of the city and said ordinance numbered 10,854, as a special tax thereon, and assessed against said property of the defendant the proportionate share chargeable against the same, and made out a special tax-bill therefor,” etc. In the second count, corresponding allegations are made in reference to the eastern alley and its paving by Duffy.

Here the substance of the ordinance is not given, nor are the material parts pleaded, nor does it appear that the ordinance prescribed the materials or the manner of doing the work. It is, however, alleged that the proceedings were taken and the contract made and work done by authority of the ordinance, and that under the ordinance the cost of the work was chargeable as a special tax and lien upon the property adjoining, etc. These allegations, which are plainly insufficient to make the pleading good, had objection been taken in the proper way, may, in...