Johnson v. Underwood

• Decision Date: 03 February 1930
• Docket Number: 27988
• Parties: H. H. Johnson et al., Appellants, v. J. Underwood et al., Commissioners of Parkville Benefit Assessment Special Road District, et al
• Court: Missouri Supreme Court

24 S.W.2d 133

324 Mo. 578

H. H. Johnson et al., Appellants, v. J. Underwood et al., Commissioners of Parkville Benefit Assessment Special Road District, et al

No. 27988

Supreme Court of Missouri

February 3, 1930

Reported at 324 Mo. 578 at 599.

Original Opinion of February 3, 1930, Reported at 324 Mo. 578.

OPINION

On Motion For Rehearing.

In their motion for rehearing counsel for appellants say that we have failed to discuss certain vital questions properly before us on this appeal, and in their suggestions say that many suits on these tax bills are "being held in the Circuit Court of Platte County until this court determines the points involved in this case." In the light of this information we have indulged the filing of supplemental suggestions in support of the motion for rehearing.

Counsel for appellants now say that point numbered IV under their head of Points and Authorities presented two points, namely that the alleged omission was a fatal error, and that in such case enforcement of the tax bills against lands that were listed is a violation of the federal and state constitutions. Point IV is as follows:

"The failure to list and assess, as the law requires, all the lands in the district is a fatal error, and the enforcement of the tax bills against the lands that were listed for that portion of the tax that the unlisted property should have borne, is a violation of the 14th Amendment of the Constitution of the United States, as well as the similar provision of the State Constitution, and renders the tax bills void."

If Point IV does in fact present two points it violates our Rule 15 which requires "a statement, in numerical order, of the points relied on," etc.

Counsel concede that the constitutional question was not raised in the motion for a new trial, but assert that the other alleged question was raised by the eleventh ground of the motion which is as follows:

"Under the law and the evidence in this case the finding and judgment should have been for plaintiffs."

Counsel for appellants also say that the same question was raised by Points V and XV which are as follows:

"V. The order of the county court defining the boundaries of the district and the land list were parts of the record of the case. The list showed on its face when compared with the said order that four tracts of 40 acres each had been omitted -- the Wingo & Herndon lands -- hence the approval of the land list by the County Court must yield to the record, the list itself and said order. The approval was a 'legal fraud.'

"XV. The statutes providing for the improvement and the issuance of tax bills therefor were not followed; therefore, both the assessment and tax bills are invalid."

Point XV does not raise the question unless it is read in connection with and as a part of Point V, and, despite appellants' assertion to the contrary, we think this question is not presented in their brief and argument except...