Keferstein v. Lankton

• Decision Date: 31 March 1873
• Citation: 52 Mo. 234
• Parties: FREDERICK W. KEFERSTEIN, Assignee of GEORGE GABHART, Respondent, v. SARAH V. LANKTON, Appellant.
• Court: Missouri Supreme Court

52 Mo. 234

FREDERICK W. KEFERSTEIN, Assignee of GEORGE GABHART, Respondent,

v.SARAH V. LANKTON, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Jecko and Hospes, for Appellant.

If Sess. Act 1867, p. 56, is to be held to apply to this case, then this work (repairing) cannot be assessed as a special tax.

Thos. Grace, for Respondent, relied on Sess. Acts 1867, p. 73, § 10.

VORIES, Judge, delivered the opinion of the court.

This action was commenced before a Justice of the Peace in the month of August 1867, to recover the sum of $16 80-100, the amount of a special tax bill charged against the defendant and certain property belonging to her in the tax bill described. The charges in the bill were for sidewalk paving in the vicinity of said property.

The action was brought under the provisions of the statute passed and approved March 13th, 1867, entitled “An act to revise the charter of the City of St. Louis” (Acts 1867, p. 56.) The act took effect from and after its passage.

The plaintiff recovered a judgment before the Justice, from which an appeal was taken to the St. Louis Circuit Court, where a judgment was again rendered against appellant, and from which she appealed to the General Term of said court, where appellant failed to file any statement of her case, as required by the rule of said court, for which reason the judgment was affirmed, from which last judgment an appeal was taken to this court.

The only question presented by the appellant for the consideration of this court, is, whether the act of 1867 referred to, is applicable to the cause of action sued on in this cause, or in other words, whether an action to recover for the work sued for can be maintained under the provisions of said act.

The appellant insists that the contract under which the work was done was made before the passage of said act; that the remedy that existed at the time of making the contract must be pursued in the collection of the tax to be assessed against appellant therefor; and second, that the work charged for was only for repairing the sidewalk, and that work done in repairing is not provided for in the act of 1867; that therefore, in order to enforce the payment for work done in repairing, resort must be had to the act of 1864, by which it was provided, that assessments for repairing should be collected as the taxes for the general government of the city are collected. (Acts 1864, p. 446.)

In reference to the first question presented, it will be seen by an examination of the contract under which the work was done, that it is dated on the 19th day of November, 1866, and by the terms of it the plaintiff in this suit undertook to do the paving and repairing of sidewalks, &c., in certain parts of the city...