Empire Trust Co. v. Stepp

• Citation: 275 S.W. 982
• Decision Date: 29 June 1925
• Docket Number: No. 15358.,15358.
• Parties: EMPIRE TRUST CO. v. STEPP et al.
• Court: Missouri Court of Appeals

275 S.W. 982

EMPIRE TRUST CO. v. STEPP et al.

No. 15358.

Kansas City Court of Appeals. Missouri.

June 29, 1925.

Rehearing Denied July 13, 1925.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by the Empire Trust Company against W. R. Stepp and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Clarence S. Palmer, of Kansas City, and Lewis A. Chapman, of Chillicothe, for appellant.

Davis & Ashby and Kitt & Marshall, all of Chillicothe, for respondents.

ARNOLD, J.

This is an action to enforce a special tax bill issued January 4, 1915, in the amount of $55.88, for paving part of Vine street in the city of Chillicothe, Mo. The tax bill is payable in four installments, was issued in five separate bills for $11.18 each, maturing annually; the first being due January 4, 1916.

Plaintiff is a duly organized banking corporation and defendants are owners of certain real estate on Vine street in said city. The city of Chillicothe is a municipal corporation organized under a special charter granted by the Missouri General Assembly.

The petition alleges that the property of defendants therein described fronts on Vine street between Webster and First streets in said city, and is chargeable with its due proportion of the whole cost of the improvement for which the tax bill in suit was issued; that the city engineer of said city issued to the Missouri Hassam Paving Company, the contractor doing the work, the special tax bill upon which the suit is based, and that said bill, for value received, was duly assigned to plaintiff. The petition is in five counts; each declaring on one of the separate bills and alleging that no part thereof has been paid. The prayer in each count is for the face of the installment and interest thereon.

The amended answer is first a general denial and for further answer the following defenses are set up: (1) That the resolution did not describe the material or manner of construction as required by law; (2) that no proper specifications were on file; (3) that the resolution to pave was not published the required number of days; (4) that there was a majority protest against the pavement; (5) that the ordinance authorizing the improvement provided the work should be completed within 60 days from the date of the contract therefor and that the extension ordinances which were passed were void, because not passed for reasons specified in the authorizing ordinance. The reply was a general denial, and for further reply each of the various points urged against the validity of the special tax bill is specifically denied. The cause was tried to the court without the aid of a jury and judgment was entered for defendants. Motions for new trial and in arrest failed, and plaintiff appeals.

At the close of all the evidence plaintiff asked and the court refused two declarations of law: First, the court was asked to declare the law to be that the tax bill introduced in evidence was prima facie evidence of the right of plaintiff to recover; the second recited the facts upon which plaintiff bases its claim for recovery and asked the court to declare the same a sufficient basis for such recovery.

It is charged the court erred in refusing to declare the tax bill offered in evidence was prima facie evidence of the right of plaintiff to recover. This contention is based upon the thirteenth subdivision of section 8758, R. S. 1919, which is as follows:

"All special tax bills issued by such cities for any purpose authorized by sections 8758 to 8762, inclusive, shall be assignable and collectible in any action brought by the owner or holder of said bills, but the city shall not be liable for the cost in any such suit in any action brought by the owner or holder of said bills, and said tax bills shall in any action thereon be prima facie evidence of the regularity of the proceedings for such special assessments and of the validity of the bills, of the doing of the work, and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bills."

The refused declaration is as follows:

"The court declares the law to be that, if the court finds from the evidence that the special tax bill introduced in evidence was issued by the city of Chillicothe, Mo., and was assigned to the plaintiff, said tax bill constitutes prima facie evidence of the right of the plaintiff to recover the amount for which the judgment is asked in the petition and that said amount constitutes a lien against the tract of land described in the petition."

Since the statute declares the tax bill shall be prima fade evidence of its validity, in order to defeat the tax bill, it is necessary that evidence shall be introduced of some material defect or irregularity in the proceedings leading up to its issuance. The proffered declaration properly declares the law and should have been given.

The second declaration of law is in the nature of an instruction covering the entire case and directing a verdict, and it will be necessary in discussing it to examine the evidence offered to sustain the defenses set up in the answer, as above stated. Defendants declared in their answer and endeavored to prove the resolution of the city council calling for bids was not published for 7 consecutive days as the law requires. The record shows that the affidavit of the publisher contains an error...