Saxton Nat. Bank v. Bennett

Decision Date03 April 1897
PartiesSAXTON NAT. BANK v. BENNETT.
CourtMissouri Supreme Court

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by the Saxton National Bank against Henry M. Bennett to recover on special tax bills. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was instituted in the circuit court of Buchanan county on two special tax bills, one for $61.50, and the other for $8.57, regularly issued, and duly assigned to plaintiff. The defense was that the ordinances and all the proceedings thereunder were in direct violation of every one of the provisions of the charter of the city of St. Joseph and the laws governing it, appertaining to the grading and regrading of streets, and requiring the ascertainment and payment of all damages that might be done by any proposed grading or regrading of any street in said city. The reply pleaded an estoppel. A jury was waived, and the cause tried to the court.

Plaintiff introduced the city collector, who testified to the genuineness of his official signature to said bills. On cross-examination he stated that the grading for which these bills were issued caused material and substantial changes in the existing surface of Levee street. The president of the plaintiff bank also testified that the signature of Mr. Glynn, the contractor, to the assignment of the tax bills, was genuine. The evidence also showed defendant was the owner of the lots described in the tax bills. Plaintiff here rested. Defendant then offered in evidence Special Ordinance No. 756 of the city of St. Joseph, entitled "An ordinance to provide for the grading of Levee street from a point eighty feet north of Rosine street to the city limits," approved October 12, 1889, to wit:

"Section 1. That it is found and declared by the common council that the property holders owning a majority in front feet of the property owned by residents of this city, and fronting on Levee street, between a point eighty feet north of Rosine street and the city limits, in the city of St. Joseph, have petitioned said common council to have Levee street, between the points named, graded the full width thereof, including the sidewalks thereon, so as to conform to the established grade according to the specifications therefor, on file in the office of the city engineer, and that the petition for such grading has been duly published according to law.

"Sec. 2. That said Levee street, between a point eighty feet north of Rosine street and the city limits, be graded in accordance with said petition and specifications on file in the office of the city engineer, and that the total cost of such grading be and the same is hereby charged, assessed and levied as a special tax on and against the lands that may be charged with the cost thereof according to law.

"Sec. 3. That the said grading of said Levee street between the points named in the preceding sections be paid for in special tax bills, made out and certified by the city engineer, against the several lots or parcels of land charged as required by law and the passage of this ordinance, and the doing of said work shall not render the city liable in any event to pay for such work, or any, otherwise than by the issue of special tax bills.

"Sec. 4. The city engineer is hereby ordered to advertise for ten days for proposals for doing the work ordered in this ordinance."

And, for the purpose only of showing the character of work done on this street, defendant read in evidence the judgment roll of Buchanan circuit court in the case of defendant against the city of St. Joseph, for damages sustained by him as owner of the lot described in the tax bill by reason of the grading of the street under the contract in controversy, the amount of damages for which judgment was entered being $350.

This is all the evidence in the case. The court, on motion of the plaintiff, declared the law as follows: "If the court, sitting as a jury in this case, believe from the evidence that the witness M. J. McCabe was the city engineer of St. Joseph, Mo., and that he had charge of the work mentioned in evidence, and that he signed the bill offered in evidence, and that said bills were assigned in writing by contract to the plaintiff, then said bills are prima facie evidence of the validity of the doing of the work and the furnishing of the material charged for, and of the liability of the property to the charge stated in the bills, and its finding will be for the plaintiff on each count of the petition for the amount therein charged and fifteen per cent. per annum from the date thereof," — to which declaration of law so made by the court defendant at the time duly excepted. The court gave no other declarations of law for either party, but refused to give for the defendant declarations of law which were asked, in the following...

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