First Nat'l Bank of Kansas City v. Nelson

• Decision Date: 30 April 1877
• Citation: 64 Mo. 418
• Parties: THE FIRST NATIONAL BANK OF KANSAS CITY, Appellant, v. GEORGE NELSON, Respondent.
• Court: Missouri Supreme Court

64 Mo. 418

THE FIRST NATIONAL BANK OF KANSAS CITY, Appellant,

v.GEORGE NELSON, Respondent.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Special Law and Equity Court of Jackson County.

Tomlinson & Ross, for Appellant, cited in argument: Neenan vs. Smith, 60 Mo. 292; First National Bank vs. Arnoldia, 63 Mo. 229; Sess. Acts 1871-2, 408, § 25.

Gage & Ladd, for Respondent, commented at length on same act and decisions.

HENRY, Judge, delivered the opinion of the court.

The bank sued Nelson on a special tax bill assigned to it by the contractor. It was issued for work done in grading a sidewalk on Tenth street, in Kansas City. Nelson owned a lot on the south side of said street, against which the tax bill was issued.

The work was done under a contract for grading the sidewalk on both sides of Tenth street, from Main street to an alley east of Cherry street.

The cost of grading the north sidewalk exceeded the cost of grading the south side, but in apportioning the cost of the work the engineer took the aggregate length of the sidewalk, and apportioned the entire cost among the lots on the street according to their frontage.

By this apportionment defendant's lot was assessed $3.17 more than if the engineer had estimated the work separately for the two sides, charging each side only with the cost of its grading.

There is no controversy about the facts. The court for plaintiff instructed the jury: 1st, that the tax bill offered in evidence is prima facie evidence of the validity of the bill, of the doing of the work, of the furnishing of the material charged for, and of the liability of the property to the charge stated in the bill; 2nd, that from the evidence offered the work was substantially completed according to the contract.

The following instruction, asked by plaintiff, the court refused: “Even if both sidewalks were included in the tax bill, yet, if the work was measured on each sidewalk, and from the evidence it can be determined how much is properly chargeable on the lot in question, then the plaintiff is entitled to judgment for the amount properly so chargeable.”

The court, at the instance of defendant, gave several instructions, but it is only necessary to notice the fourth, which is as follows:

“If the tax bill in suit is based upon a computation and apportionment of the cost of grading the sidewalks on both sides of Tenth street, and not upon a computation and apportionment of the cost of grading the sidewalk on the south side only of Tenth street, then the finding must be for defendant.”

The plaintiff, after the instructions were given, took a non-suit with leave, etc., and on the same day filed his motion to set the same aside, and for a new trial, which was overruled, and he has appealed to this court.

The instructions asked by the plaintiff and refused, and the one given for defendant present the only question for our...