Haggard v. City of Carthage

• Citation: 67 S.W. 567,168 Mo. 129
• Parties: HAGGARD v. CITY OF CARTHAGE.
• Decision Date: 28 March 1902
• Court: Missouri Supreme Court

67 S.W. 567

168 Mo. 129

HAGGARD v. CITY OF CARTHAGE.

Supreme Court of Missouri, Division No. 2.

March 28, 1902.

MUNICIPAL CORPORATIONS — ACTIONS AGAINST — STATEMENT TO COUNCIL — CLAIMS EX DELICTO — CONSTITUTIONALITY.

1. Rev. St. 1899, § 5854, provides that no costs shall be recovered in any action against a city of the third class on any unliquidated claim unless there has been presented to the council for audit a statement in writing, with full account of the items, and verified as correct, reasonable, and just. Held, that the statute does not apply to actions ex delicto.

2. The statute is constitutional.

Appeal from circuit court, Jasper county; J. D. Perkins, Judge.

Action by M. G. Haggard against the city of Carthage. From a judgment against plaintiff for costs, he appeals. Reversed.

Thomas & Hackney, for appellant. H. J. Green, for respondent.

GANTT, J.

This case comes to this court on appeal from the judgment of the circuit court taxing against the plaintiff all the costs in this suit. The plaintiff sued and recovered judgment against the defendant, a city of the third class, for damages sustained by him on account of injuries received whilst traveling on one of the public streets of defendant city, which street the defendant had negligently permitted to become dangerous for travel. After a contested jury trial, and the recovery of judgment by plaintiff, the defendant filed a motion to tax against the plaintiff all costs of the suit, for the reason that plaintiff had not presented his claim to the city council for allowance prior to bringing suit. This motion was sustained by the court, and all costs taxed against the plaintiff. In due time the plaintiff filed his motion to set aside this judgment, and also a motion in arrest of this judgment, which motions being overruled, he appealed to this court.

The trial court based its action on section 1528, Rev. St. 1889 (now section 5854, Rev. St. 1899). The plaintiff contended in the court below: First, that this section was unconstitutional; and, second, that it did not apply to demands arising ex delicto; and the plaintiff assigns as error the action of the trial court in sustaining defendant's motion to tax said costs against plaintiff.

Section 1528, Rev. St. 1889 (now section 5854, Rev. St. 1899), in force when plaintiff received his injuries for which he recovered judgment against the city of Carthage, a city of the third class under the laws of this state, is in these words: "All claims against the city must be presented in writing with full account of the items and verified by the oath of the claimant or his agent that the same are correct, reasonable and just; and no claim shall be audited or allowed unless presented and verified as provided in this section. No cost shall be recovered against the city in any action brought against it for any unliquidated claim which has not been presented at the council to be audited, nor upon claims allowed in part unless the recovery shall be for a greater sum than the amount allowed with the interest due: provided that no action shall be maintained against such city in exercising or failing to exercise any corporate power or authority in case when such action would not lie against a private individual under like circumstances." This section has received judicial construction by both the St. Louis and the Kansas City courts of appeals, and in each it was ruled that this section was not intended to apply to actions ex delicto. Evans v. City of Joplin, 84 Mo. App. 296; Cropper v. City of...