Seibert v. Copp

• Decision Date: 31 January 1876
• Citation: 62 Mo. 182
• Parties: AUGUST SEIBERT, et al., Respondents, v. SAMUEL COPP, Appellant.
• Court: Missouri Supreme Court

62 Mo. 182

AUGUST SEIBERT, et al., Respondents,

v.SAMUEL COPP, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Hitchcock, Lubke & Player, for Appellant, cited City to use, etc. vs. Allen, 53 Mo., 44. 54; Blackw. Tax Tit., pp. 28, 29, 39, 43 et seq.; Adj. Sess. Acts, 1870, p. 481, § 16; Stephens vs. St. Louis National Bank, 43 Mo., 385, 388; St. Louis vs. Newman, 45 Mo., 139.

F. & L. Gottschalk, for Respondent, cited City to use, etc. vs. Newman, 45 Mo., 138; Sess. Acts, 1871, p. 194, § 7; 2 Dil. Mun. Corp., §§ 653, 660, and cases cited; Dubuque vs. Harrison, 34 Iowa, 166.

HOUGH, Judge, delivered the opinion of the court.

This action was brought on the 18th day of September, 1872, by August Seibert in his own right, and as administrator of Frederick Gabel, deceased, to enforce the lien of a special tax bill for the sum of $1,413.92, alleged to have been issued by the city engineer of the city of St. Louis, on the 4th of September, 1869, against certain property in said city, belonging to the defendant, for curbing, guttering, macadamizing and paving done by the said Seibert and Gabel as partners, under and by virtue of a contract made with them by the city authorities, in pursuance of the charter and ordinances of said city.

The answer of the defendant put in issue all the allegations of the petition, and pleaded specially that the alleged lien of the tax bill sued on expired in September, 1871, no suit to enforce the same having been instituted within two years after the day of its date. To this answer there was no reply. When the cause was called for trial, defendant moved for judgment on the pleadings, which motion was overruled, and defendant excepted. At the trial, defendant objected to the introduction in evidence of the tax bill sued on, on the ground, that the lien thereof had expired, and all right of action on the same was barred, and it was inadmissible as evidence of any liability on the part of the defendant, which objection was overruled, the tax bill admitted, and defendant excepted. Defendant introduced testimony for the purpose of showing that the contract, under which the work was done, was illegal and invalid, in that a change had been made in the original contract by the plaintiffs and the city authorities, to which the sureties on plaintiff's bond, for the faithful performance of his contract, were not parties, and did not assent, as required by the ordinance under which the change was made. Defendant asked the following instruction:

“Defendant prays the court to instruct the jury, that upon the whole evidence in this cause, the plaintiff is not entitled to recover; that it appears from the allegations in the petition, and from the record in this cause, that the certified tax bill mentioned in the petition, the lien whereof is sought to be enforced in this suit, was made out and dated on the 4th day of September, 1869, and that the proceedings at law to collect said tax bill were first commenced in the month of September, 1872, the jury are instructed that prior to the month of September, 1872, the said tax bill had ceased to be a lien on the land therein mentioned, and plaintiff cannot recover in this action.”

This instruction the court refused to give, and defendant excepted. There was a finding and judgment for the plaintiff, which was affirmed at General Term, and defendant has appealed to this court.

The material question presented by this record for our determination, is, whether plaintiff's action was barred by the statute. Under the law in force, at the time the tax bill sued on was issued, an action upon it would not have been barred for five years after its date. (City of St. Louis to use, etc. vs. Newman, 45 Mo., 138.) The 14th section of article 8, of the act of March 4, 1870, to revise the charter of the city of St. Louis, provides that all special tax bills for work contemplated by it shall be made out by the city engineer, and by him registered and certified and delivered to the comptroller, to be by him registered and countersigned, and then delivered to the person in whose favor they have been issued, for collection. The 15th section provides, that said tax bill shall be a lien on the property charged therewith, and may be collected by the contractor in his own name, makes them prima facie evidence of certain things, provides for certain defenses, and exempts the city from all liability on account of any work done, for which such bills were issued. The 16th section is as follows: “Whenever any such special tax bill issued heretofore, or hereafter to be issued, shall be paid, it shall be entered satisfied on the register in the comptroller's office; and any tax bill that is not entered satisfied within two years after its date, unless proceedings in law shall have been commenced to collect the same within that time, and shall be still pending, the lien shall be destroyed and of no effect against the land charged therewith.” It is contended by the respondent that the words ““any such special tax bill” in this section refer only to the tax bills to be issued under the 14th and 15th sections, the substance of which is given above. This section must be regarded as speaking from the date of its passage, the day it took effect; and how “any such special tax bills” could have been “issued heretofore” under an act just taking effect is, to say the least, not very clear. It is quite evident that the framers of this section recognized the fact that tax bills, of the character provided for in the 14th and 15th sections, may have been issued under the former...