Irvin v. Devors

• Decision Date: 31 October 1877
• Citation: 65 Mo. 625
• Parties: IRVIN, APPELLANT v. DEVORS
• Court: Missouri Supreme Court

65 Mo. 625

IRVIN, APPELLANT

v.DEVORS

Supreme Court of Missouri.

October Term, 1877.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

James P. Thomas for respondent.

1. If the petition in this case states a cause of action, however imperfectly or defectively, the judgment of the court below must be reversed. McClurg v. Phillips, 49 Mo. 315; Morgan v. Bouse, 53 Mo. 219.

2. The facts alleged in the petition, as alleged, constitute a good cause of action. St. Louis to the use of Carrol v. Hardy, 35 Mo. 261; City of St. Joseph v. Anthony, 30 Mo. 537.

The petition distinctly alleges the performance of the work by appellant, and the execution and delivery of a special tax-bill therefor, by the engineer of said city, which is all that is necessary to show a liability on the part of defendant for the value of such work. Ess v. Bouton, 64 Mo. 103; Seibert v. Allen, 61 Mo. 482; Neenan v. Smith, 60 Mo. 292.

James H. Ringo for respondent.

1. It is not charged in the petition that the mayor and city council ordered the work to be done by ordinance or otherwise. It is stated that the city council passed some ordinances. But by the terms of the charter there must be a concurrence of both the mayor and city council. Sess. Acts 1865, p. 435; Saxton v. Beach, 50 Mo. 488; Saxton v. City of St. Joseph, 50 Mo. 153.

2. Nor is it stated in the petition that the cost of the work was charged against defendant's lot in proportion to the frontage thereof, as provided by sec. 5 of the act referred to. St. Louis v. Clemens, 49 Mo. 552; Neenan v. Smith, 50 Mo. 525; Weber v. Schergens, 59 Mo. 389.

NORTON, J.

This suit is for the recovery of a special tax bill, and to subject to its payment lot five of block fifteen, in Patee's addition to the city of St. Joseph. A demurrer was sustained to the petition by the trial court and judgment rendered thereon in favor of defendant, from which plaintiff has appealed to this court. The only question, therefore, presented for our consideration is the sufficiency of the petition. The petition is too verbose and lengthy for insertion here. It is alleged therein in substance that the tax bill originated for work done by plaintiff under contract with the city engineer, in paving in front of defendant's lot on Locust street, in said city; said street having been previously macadamized in front of said lot, the said defendant having failed and refused to do the work himself within the time prescribed by ordinance. Under section 4, acts 1865, page 435, it is provided that whenever the mayor and city council shall order the paving, macadamizing, guttering, cross-walks, sidewalks, &c., within the limits of the city, the cost of the same shall be paid by the owners of the property in the vicinity, as shall hereafter be provided, and as may be further provided by ordinance. Sec. 5 provides that whenever any of the above mentioned works shall have been fully completed under the authority of ordinance, the city engineer or officer in charge of the work shall compute the cost thereof, and assess it as a special tax against the adjoining property fronting upon the work done, and each lot of ground shall also be charged in proportion to the frontage...