Seibert v. Allen

• Citation: 61 Mo. 482
• Parties: AUGUST SEIBERT, et al., Respondents, v. THOMAS ALLEN, Appellant.
• Decision Date: 31 January 1876
• Court: United States State Supreme Court of Missouri

61 Mo. 482

AUGUST SEIBERT, et al., Respondents,

v.THOMAS ALLEN, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Dryden & Dryden, for Appellant.

Plaintiff was bound, in order to make out his case, to show that the locus in quo was a highway, and 2nd, that the abutting land was defendant's property. Although the tax bill proved the facts prima facie, plaintiff was bound to put in all his evidence relating thereto, together in chief, and could not introduce it piece-meal. If not introduced in making out his case, it is lost to him, except by grace of the court. (Reese vs. Smith, 2 Stark. N. P., 32; Delany vs. Mitchell, 1 Id., 440; Ryan & Mood., 254.) The testimony referred to was in no sense in rebuttal.

The verdict was bad because it failed to find on all the issues submitted. The most that can be said of this verdict, is, that it is an assessment of damages. (Fenwicke vs. Logan, 1 Mo., 401; Russell vs. Bancroft, Id., 515; Hickman vs. Bird, Id., 495; Pratt vs. Rogers, 5 Mo., 53.) It is not to be made out by an argument that the verdict intended to find the issues.

Gottschalk, for Respondents.

The tax bill was prima facie evidence of the validity of the charge (Sess. Acts, 1871, p. 193, § 1), and made out plaintiff's case. Defendants then offered evidence to show that one or more of the presumptions raised by the bill were untrue; and plaintiff had a right to rebut such evidence. (City to use vs. Coons, 37 Mo., 44; City to use vs. Armstrong, 38 Mo., 29; Kefferstein vs. Knox, 56 Mo., 106; City to use vs. Bernoudy, 43 Mo., 552; 44 Mo., 137.)

Certainly it was in the discretion of the court to permit such evidence by plaintiff in rebuttal.

Defendant's pleadings expressly admit his ownership of the land described in the tax bill.

The question of the verdict is purely technical.

HOUGH, Judge, delivered the opinion of the court.

This was an action to enforce the lien of two special tax bills issued by the proper officer of the City of St. Louis, for certain street improvements made in front of a piece of ground in said city, alleged to be the property of the defendant. The two counts of the petition were substantially the same, differing only in the description of the tax bills and the property sought to be charged. The answer to the first count is not material, as the matters in controversy here arise chiefly out of proceedings having reference only to the second count.

The answer to the second count alleged that the work was done without authority of law; that the place where it was done had never been dedicated to the public; nor in any manner legally established or opened as a street or highway, but was, at the time said work was performed, the property of the defendant; that he was the owner of the entire tract lying north of and fronting on the work done by the plaintiffs, and that the city engineer failed to assess the cost of said work as a special tax against the whole of said ground, but assessed the same against a small part only, and against other property of the defendant in no wise adjoining or fronting on said work.

At the trial the plaintiff authenticated his tax bills, offered them in evidence, and rested. The defendant then offered testimony tending to show that the ground on which the work was done had never been conveyed or dedicated to the public, and had never been condemned, and that the use made of said ground for the purpose of a highway, was with a distinct understanding on the part of the proprietors and the public authorities, that the same was to be temporary only, and not permanent. There was testimony also, that in 1843, one William Russell, who was then and for a long time prior thereto had been the owner of a large tract of land embracing within its limits the street on which the improvement was made, as well as the land sought to be charged with a lien, conveyed the same to his daughter, the wife of the defendant, for and during her natural life, remainder in fee to her descendants, if any, if not, then to revert to the grantor.

The plaintiff then offered testimony tending to show a parol dedication by the defendant of the strip of land in question, for the purpose of a highway, and an acceptance and user of the same by the public for a great number of years, together with statutes, ordinances of the city, and orders of the county court relating to the same. The plaintiff also read in evidence a deed from Mrs. Allen, in which she was joined by her husband, the defendant, and her father, Mr. Russell, by which she conveyed to one Clark the land previously conveyed to her by her father, excepting the east half of block 53, as laid out in the general plat of Allen's addition; also a deed from said Clark to the defendant for the same land conveyed to him by Mrs. Allen.

To the admission of all this testimony the defendant objected and excepted, on the ground that it was not in rebuttal of the defendant's evidence, but was properly evidence in chief, and part of the plaintiff's original case.

The defendant then offered to prove that the east half of block 53, mentioned in the deed to the defendant, included the greater portion of the street on which the work was done by the plaintiff, and also the adjoining lands on both sides of said street, which testimony was excluded by the court, and the defendant excepted.

The court instructed the jury that there was no testimony tending to show a valid condemnation for public use as a highway, of the ground covered by the plaintiff's work, or any grant to the public, by deed or other conveyance from the defendant, or any one under whom he claimed. Several instructions were given declaring the law as to parol dedications, to which no objection is made here.

The following instruction asked by the defendant was refused by the court, and the defendant excepted:

“The court instructs the jury that if the ground on which the work mentioned in the petition was done was embraced within the lines of the tract conveyed to Mrs. Ann R. Allen by the deed of June 1843, from William Russell, read in evidence, the plaintiff has failed to show what he is bound to show, in order to recover, that the ground fronting on said work of plaintiffs, was the property of the defendant, and if the jury believe from the evidence in the cause, that the ground where the said work was done, was so embraced within said lines of said tract, so conveyed to said Ann R., their verdict should be for the defendant on both counts.”

The jury returned the following verdict: “We, the jury find for the plaintiffs on the first count, in the sum of thirty-three hundred and ninety-four dollars and eight cents, $3394.08.

ERASTUS T. HUME, Foreman.

We, the jury, find for the plaintiff on the second count, in the sum of thirty-five hundred and sixty-five dollars and seventy-six cents--$3565.76.

ERASTUS T. HUME. Foreman.”

Motions for a new trial and in arrest of judgment were made and overruled. Judgment was entered on the verdict rendered and affirmed at the general term, and defendant has appealed to this court.

The general rule undoubtedly is, that the plaintiff must open his whole case in chief, and cannot, as Lord Ellenborough expressed it, “cut his case into parts.” (Reese vs. Smith, 2...