National Lumber & Creosoting Co. v. Burrows

• Decision Date: 27 May 1926
• Docket Number: No. 4076.,4076.
• Citation: 284 S.W. 153
• Parties: NATIONAL LUMBER &. CREOSOTIMG CO. v. BURROWS.
• Court: Missouri Court of Appeals

284 S.W. 153

NATIONAL LUMBER &. CREOSOTIMG CO. v. BURROWS.

No. 4076.

Springfield Court of Appeals. Missouri.

May 27, 1926.

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

Action by the National Lumber & Creosoting Company against E. R. Burrows. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

B. L. Rinehart, of West Plains, for appellant.

C. P. Turley, of Van Buren, and L. N. Searcy, of Eminence, for respondent.

BRADLEY, J.

This action is in trespass for damages alleged to have been sustained because of summary distraint proceedings by the collector of the revenue of Carter county. The cause was filed in Carter county, but the venue was changed to Shannon, where a trial to a jury resulted in a verdict and judgment for defendant, and plaintiff appealed.

Plaintiff, a foreign corporation, in 1923 owed $74.67 personal taxes in Carter county and these taxes became delinquent January 1, 1924, April 2, 1924, defendant, as collector, proceeding under section 12907, R. S. 1919, summarily seized some railroad ties belonging to plaintiff and on April 28th said these ties to pay said taxes. The defense is that defendant proceeded according to law, and is therefore not liable.

Section 12907, R. S. 1919, provides, so far as pertinent here:

"The collector shall diligently endeavor and use all lawful means to collect all taxes which they are required to collect in their respective counties, and to that end they shall have the power to seize and sell the goods and chattels of the person liable for taxes, in the same manner as goods and chattels are or may be required to be seized and sold under execution issued on judgments at law, and no property whatever shall be exempt from seizure and sale for taxes due on lands or personal property: Provided, that no such seizure or sale for taxes shall be made until after the first day of October of each year. * * * But no such seizure and sale of goods shall be made until the collector has made demand for the payment of the tax, either in person or by deputy, to the party liable to pay the same, or by leaving a written or printed notice at his place of abode for that purpose, with some member of the family over fiften years of age. Such seizure may be made at any time after the first day of October, and before said taxes become delinquent, or after they become delinquent. * * *"

Plaintiff's case is predicated upon the theory that demand for the taxes due was a necessary prerequisite to summary seizure and that demand according to law was not made. On the other hand, defendant contends that demand according to law was made. Plaintiff testified:

That he "gave the company three or four notices that taxes were due by registered letter mailed to Texarkana, Ark. * * * I wrote a letter to the plaintiff company at Texarkana, Ark., telling them that these taxes were due and sending the statement of the taxes. I sent them several statements at different times after August, 1923."

Defendant also testified that he sent to plaintiff at Texarkana by mail a copy of the notice of levy or seizure, and plaintiff admits receiving this notice, but there is nothing to show that the notices of taxes due which defendant says that he sent by mail were received, and there is no evidence respecting the stamping, address, and mailing to raise any presumption as to the receipt of the notices. The fact that plaintiff admits receiving the notice of levy or seizure is not important because the statute requires demand prior to the seizure. But if it be assumed that...