Kefferstein v. Knox

• Decision Date: 31 March 1874
• Citation: 56 Mo. 186
• Parties: F. W. KEFFERSTEIN, Assignee of JACOB CORNELI, Respondent, v. SAMUEL KNOX, Appellant.
• Court: Missouri Supreme Court

56 Mo. 186

F. W. KEFFERSTEIN, Assignee of JACOB CORNELI, Respondent,

v.SAMUEL KNOX, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Jacob Klein, for Appellant.

I. The decision in the case of City of St. Louis to use, etc vs. DeNoue, (44 Mo., 136,) does not authorize the insertion of a new name by the parties after the tax bill has left the city engineer. Such an alteration destroyed the instrument for legal purposes and rendered it inadmissible as evidence.

II. The tax bill was incompetent as evidence, because the city engineer who signed the bill, had no personal knowledge of the work charged. The description of the work, as contained in the bill, was a mere copy of a memorandum given by the special tax clerk. (2 Phil. Ev., Cow. and Hill's notes, 255.)

Thomas Grace, for Respondent.

I. The tax bill was valid, notwithstanding the name of appellant did not appear therein, he having admitted himself to be the owner of the ground described in the tax bill. (City to use Rotchford vs. De Noue, 44 Mo., 139; City to use Creamer vs. Bernoudy, 43 Mo., 554.)

II. The engineer was warranted in certifying the tax bill on the measurement of his assistant. The engineer is to be considered as having charge of all work done under his authority in his department. (City to use Creamer vs. Oeters, 36 Mo., 463.)

SHERWOOD J., delivered the opinion of the court.

Action on a special tax bill, instituted in the first instance before a justice of the peace. It appeared in evidence on the trial, that the defendant had a life estate in the property mentioned in the bill sued on; that said bill was made out originally against Theresa Achterman and Jeremia Manual Lessus whose names alone appeared in the bill as the persons to be charged thereby; that the signature of the city engineer to the certificate upon the bill was genuine; that said engineer never made any personal examination of the work specified therein; but made such certificate upon the measurement of his special tax clerk, employed in his office in that capacity; that after the bill was made out, certified and delivered, the plaintiff, of his own motion, and without the knowledge or consent of Bischoff, the city engineer, with lead pencil struck out the names of the lessees and inserted that of the defendant; that this erasure and insertion were made in order that the summons might be issued against the defendant. After these facts were either proven or admitted, plaintiff offered to read the tax bill in evidence, but the defendant insisted that the bill was not competent evidence against him for any purpose, giving specific reasons therefor. The tax bill was however permitted to be read, and was dated January 31st, 1868. E. H. Hesse testified that he was employed by the city engineer as special tax clerk, and in that capacity he had made a measurement of the work referred to, and found that the bill corresponded with his memorandum of such measurement.

This was in substance the testimony and at its close, certain declarations of law, denying plaintiff's right of recovery, were refused, judgment rendered against defendant and his surety (on the appeal bond), with direction that if it were not satisfied out of the general property of defendant and his surety, that the residue be levied of the property described in the tax bill which was declared to be a lien on such property. The Circuit Court in general term affirmed this judgment and...