Seibert v. Tiffany

• Decision Date: 11 November 1879
• Parties: AUGUST SEIBERT, Respondent, v. DEXTER TIFFANY, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 33

AUGUST SEIBERT, Respondent,

v.DEXTER TIFFANY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 11, 1879.

1. Where it appears that the assessment enforced by a judgment upon a special tax-bill was made upon the basis that each lot should be charged with that proportion which its frontage bears to that of all the lots; where the cost of the whole work, the ratio per front foot, and the defendant's proportion appears, and no error in the calculation is shown, the bill will be sustained, where the ordinance is susceptible of such a construction.

2. The legal theory that the improvement of a street benefits the property charged, cannot be contradicted by testimony that the improvement brought other property into market, thus decreasing the value of the property charged.

3. The tax-bill makes out a prima facie case, and if it is claimed that no plans, profiles, and specifications were submitted to the Council, he must show such failure.

4. A counter-claim for stone taken from the property sought to be charged, and used in the improvement, cannot be allowed in an action on a special tax-bill.

5. The passage of the ordinance is conclusive as to the necessity of the work.

APPEAL from the St. Louis Circuit Court.

Affirmed.

DEXTER TIFFANY, pro se: The bill sued on embraced two lots, one of which only was chargeable with any portion of the work, and therefore was illegal and void, and judgment should have been for defendant.-- Miller v. Anheuser, 4 Mo. App. 436; Kefferstein v. Holliday, 3 Mo. App. 569. The mode of assessment prescribed by the ordinance was unjust and improper.-- Neenan v. Smith, 50 Mo. 531; City v. Clemens, 49 Mo. 554; Weber v. Scerzens, 59 Mo. 389; Zoeller v. Kellogg, 4 Mo. App. 163. The pleadings raise the issue that no plans or profiles were attached to the ordinance, and the plaintiff failed to show that there were any such. Surely the defendant cannot be held to prove a negative.-- Perkinson v. Partridge, 3 Mo. App. 60, and cases cited. A counter-claim may be for unliquidated damages.-- Schubert v. Harteau, 34 Barb. 447.

L. GOTTSCHALK, for the respondent: An assessment, if wrong, may be corrected.-- Kiley v. Cranor, 51 Mo. 54; Kiley v. Oppenheimer, 55 Mo. 375. And even at the trial, any error in the assessment may be corrected.-- Neenan v. Smith, 60 Mo. 229; Bank v. Arnold, 63 Mo. 229; Bank v. Nelson, 64 Mo. 418. The passage of the ordinance is conclusive as to the necessity for the work.-- Miller v. Anheuser, 2 Mo. App. 168; Bohle v. Stannard, 7 Mo. App. 51.HAYDEN, J., delivered the opinion of the court.

This is a suit on a special tax-bill issued against property of the defendant at the corner of Chouteau and Grand Avenues, in the city of St. Louis, for work done in curbing, guttering, macadamizing, etc., the latter street. The defendant pleaded various matters; among others, that the ordinance is void, as requiring each lot to be assessed in proportion to the linear quantity bordering or fronting on any one finished block. But a proper construction of the ordinance does not necessarily require this; and, in point of fact, the clause as to the one block was disregarded, and the property ultimately assessed in the proportion that the extent in front feet upon Grand Avenue bore to the whole frontage. The ordinance--No. 8593--to improve Grand Avenue from Vista to Chouteau Avenue, approved on July 16, 1873, was passed in pursuance of the fifth subdivision of the first section of the third article of the City Charter of 1870, and this ordinance is susceptible of the construction which was evidently put upon it upon reassessment, by which it would appear that the cost of the work was divided among all the lots in proportion to their frontage on Grand Avenue, where the work was done. The defendant confines himself to criticising the words of the ordinance, instead of showing that the actual assessment, as enforced by the judgment, was not upon the basis that “each lot shall be charged in the proportion that its frontage bears to that of all the lots.” Neenan v. Smith, 50 Mo. 531. The cost of the whole work appears, the ratio per front foot, and the defendant's proportion. He failed to show any error in the calculation. His objections appear to be based upon a misuse of the term “frontage,” and upon an assumption that other assessments are here in question than that for work done upon the street called Grand Avenue. The lot in question was bounded by Caswell Street, also by Chouteau Avenue, and on the west...