Michel v. Taylor

• Citation: 127 S.W. 949,143 Mo. App. 683
• Parties: MICHEL v. TAYLOR.
• Decision Date: 02 May 1910
• Court: Missouri Court of Appeals

127 S.W. 949

143 Mo. App. 683

MICHEL v. TAYLOR.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. APPEAL AND ERROR (§ 791)—OBJECTIONS TO WRIT OF ERROR—WAIVER—FILING BRIEF ON MERITS.

The filing of a brief on the merits with a motion objecting to entertaining the writ of error does not waive a motion to dismiss for failure to comply with rule 7, requiring notice of writ of error with acceptance, waiver, or return of service to be filed and attached to the transcript.

2. MUNICIPAL CORPORATIONS (§ 485) — PUBLIC IMPROVEMENTS — TAX BILL — ACTIONS— EVIDENCE.

In an action on a tax bill, regular on its face, issued for public improvements, the introduction of the tax bill made a prima facie case for plaintiff.

3. MUNICIPAL CORPORATIONS (§ 445)—PUBLIC IMPROVEMENTS — PROCEEDINGS—NOTICE OF LETTING CONTRACT.

Ordinances requiring notice of letting a contract for public improvements are mandatory; failure to comply therewith avoiding the tax bills issued for the work.

4. TIME (§ 6) —"WEEK."

An ordinance required the city engineer to advertise for bids for sidewalks as provided by statute for advertising for bids for work upon the roadway of any street. Sess. Acts 1901, p. 65 (Ann. St. 1906, § 5859), requires not less than one week's advertisement for bids on such work. An advertisement for bids for sidewalks was published on Wednesday morning, January 1st, and every day thereafter until and including the morning of January 7th, and the contract was awarded at 8 p. m. on that day. Held that, as seven full days had not elapsed when the contract was awarded, the ordinance was not complied with.

Appeal from Circuit Court, Jasper County; Haywood Scott, Judge.

Action by J. P. Michel against Lulie Taylor. Judgment for defendant, and plaintiff appeals. Affirmed.

Small & Hagar, for appellant. Spencer, Grayston & Spencer, for respondent.

GRAY, J.

This action was instituted in the circuit court of Jasper county on the 8th day of September, 1908, by plaintiff, to recover on a special tax bill issued by the city of Joplin, a city of the third class, for the construction of a sidewalk. On trial in the circuit court the defendant was successful, and plaintiff appealed.

From the printed abstract of the record and brief filed by appellant the cause is here on the appeal taken by plaintiff from the judgment of the Jasper county circuit court. There is nothing in the abstract, statement, or brief to indicate that the cause is in this court except by virtue of that appeal. From the brief of the respondent, we are informed that the cause is in this court on a writ of error; that the appeal was dismissed by the appellant. The appeal was first granted to the Kansas City Court of Appeals, and the writ of error was obtained from that court. The case is in this court on a transfer from the Kansas City Court of Appeals.

There is nothing in the record filed by the appellant, or in this court, showing that any notice, required by section 852, Rev. St. 1899 (Ann. St. 1906, p. 677), has ever been given to the defendant. Rule 7 (122 S. W. v) of this court provides: "All notices of writs of error, with the acceptance, waiver or return of service endorsed thereon, shall be filed with the clerk of this court, and by him attached to the transcript in the cause, and shall be the only evidence that such notice has been given." The defendant has filed in this court a motion to have the cause dismissed, because of the failure to give this notice. This motion is printed and is accompanied with a brief on the merits. The filing of a brief on the merits with a motion objecting to the writ is not a waiver of the right to insist upon the objections to the writ. Burdett v. Dale, 95 Mo. App. 515, 69 S. W. 480. The record in the case is...