Higgins v. Ausmuss
| Decision Date | 30 April 1883 |
| Citation | 77 Mo. 351 |
| Parties | HIGGINS v. AUSMUSS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court.--HON. G. D. BURGESS Judge.
AFFIRMED.
E. R. Stephens for appellant.
Chas. L. Dobson for respondent.
This is an action in the nature of replevin, for claim and delivery of personal property, instituted before a justice of the peace of Linn county. Plaintiff obtained judgment before the justice, and also in the circuit court, to which the cause had been taken on defendant's appeal, and from the latter judgment defendant has appealed to this court, and assigns as the chief ground of error the action of the court in refusing instructions.
It appears from the record before us that defendant was the collector of the corporation of the city of Linneus, and was charged by an ordinance of said city with the duty of collecting all taxes placed in his hands for collection; that he gave plaintiff a receipt for railroad and city revenue tax assessed against him for the year 1877, the tax on personal property amounting to $11, and on real estate to $9.04, making a total of $20.04. This receipt was produced in evidence by the plaintiff, and across one corner of it was written, “Balance due $8.64 as special repair tax on streets.” This tax plaintiff refused to pay on the ground that it was illegal, for the reason that he had never been notified to build or repair his sidewalk, and that the repairing claimed to have been done by defendant was without authority; on plaintiff's refusal to pay this tax, defendant levied upon two cook stoves, for the recovery of which this suit was brought. The tax-book was offered in evidence, which defendant testified had been placed in his hands for collection, and the only reference made to its contents in the bill of exceptions is that “it tended to show the balance and the note or memorandum made by the marshal and collector showing $8.64 special assessed repair tax.”
It is insisted that the court erred in refusing the following instructions:
1. That the collector of the city of Linneus is empowered to levy on, seize and sell personal property for the payment of taxes due and unpaid to the same for general or special purposes, and that if at the time the property was replevied by Higgins, the same was actually levied upon and seized by defendant as collector of said city for a balance of $8.64, as shown by the entries in the city tax-book as taxes due the city, or shown by the return of the collector (the defe...
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