State ex rel. and to Use of Rudder v. Haphe

• Decision Date: 14 October 1930
• Citation: 31 S.W.2d 788,326 Mo. 460
• Parties: The State at Relation and to Use of John F. Rudder, Collector of Revenue of St. Louis County, Appellant, v. Arthur A. Haphe and Southern Surety Company
• Court: Missouri Supreme Court

31 S.W.2d 788

326 Mo. 460

The State at Relation and to Use of John F. Rudder, Collector of Revenue of St. Louis County, Appellant, v. Arthur A. Haphe and Southern Surety Company

Supreme Court of Missouri

October 14, 1930

Appeal from Circuit Court of St. Louis County; Hon. John W McElhinney, Judge.

Affirmed.

W F. Stahlhuth for appellant.

(1) This court has appellate jurisdiction in cases involving the construction of the revenue laws of the State. Art. VI, Sec 12, Constitution; Sec. 12889, R. S. 1919; State ex rel. v. Adkins, 221 Mo. 112; State ex rel. v. Fendorff, 317 Mo. 579. (2) In passing upon a demurrer charging that the petition fails to state a cause of action, all facts properly pleaded and all inferences of fact that may fairly and reasonably be drawn therefrom must be taken as true. Martin v. Coal Co., 288 Mo. 253; Bushman v. Barlow (Mo.), 15 S.W.2d 331. (3) Property belonging to an estate on June 1st is subject to taxation and is properly taxable against the administrator. Secs. 12773, 12756, R. S. 1919; State ex rel. v. Burr, 143 Mo. 209; State ex rel. v. Packard, 250 Mo. 686. (4) The law imposes the duty on the administrator to pay the personal taxes levied against an estate without having them allowed by the probate court. Sec. 181, R. S. 1919, Sub. III; Kansas City v. Simpson, 90 Mo.App. 50; State ex rel. v. Burr, 143 Mo. 209; State ex rel. v. Packard, 250 Mo. 686. (5) The administrator becomes personally liable where he finally settles the estate and makes distribution thereof, without paying the personal taxes due from the estate. Sec. 7213, R. S. 1919; Kansas City v. Simpson, 90 Mo.App. 51; State ex rel. v. Burr, 143 Mo. 209; State ex rel. v. Packard, 250 Mo. 686. (6) Where an administrator fails to do the things required of him by law he and his surety are liable. State ex rel. v. Morrison, 244 Mo. 193; State ex rel. v. James, 82 Mo. 509; State ex rel. v. Walsh, 67 Mo.App. 348.

George Eigel for respondent Southern Surety Company.

(1) As the amount involved in this case is less than $ 7,500, and no constitutional question is involved and no construction of the revenue laws of the State, the jurisdiction on this appeal is in the St. Louis Court of Appeals. R. S. 1919, secs. 2818, 2819. (2) No breach of the bond is alleged. The filing and approval of the final settlement acted as a complete discharge of the surety. 24 C. J. 1069, sec. 2564; State v. Gray, 106 Mo. 526; State v. Noll, 189 S.W. 582; State v. Anthony, 30 Mo.App. 638. (3) It appeared from the face of the petition that Haphe, administrator, had made final settlement of the estate without paying the personal taxes due from the estate. In these circumstances, Haphe is personally liable. State ex rel. v. Packard, 250 Mo. 686; State ex rel. v. Burr, 143 Mo. 209.

OPINION

Ragland, J.

This is an action on an administrator's bond. The principal in the bond was not served. At the return term defendant Southern Surety Company, the surety on the bond, demurred to the petition. The demurrer was sustained by the circuit court and, plaintiff declining to further plead, judgment was entered thereon in favor of the defendant. From such judgment plaintiff prosecutes this appeal.

The petition to which the court sustained a general demurrer on the part of defendant surety (deleting immaterial allegations) was as follows:

"The State of Missouri, which sues in this behalf at the relation and to the use of the Collector of the Revenue within and for the County of St. Louis, in the State of Missouri, plaintiff, for a cause of action, states:

"That John F. Rudder, the Collector above named, and the relator herein, is the duly elected and legally qualified and acting Collector of the Revenue within and for the county and State aforesaid.

"Plaintiff further states that defendant Arthur A. Haphe at the times next hereinafter mentioned was the administrator of the estate of Daniel R. Super, deceased, who, at the time of his death, was a resident of said county and of the city and school district hereinafter mentioned.

"Plaintiff further states that at the times next hereinafter mentioned said estate was in the course of administration in the probate court of said county, which court then had jurisdiction of said estate, and said defendant Arthur A. Haphe had the care, charge and management of taxable personal property belonging to said estate, which personal property was subject to taxation and was legally taxable in said county and in the city and school district herein mentioned, and was of value as follows:

"On the 1st day of June, 1922, of the aggregate assessed value of $ 12,500.

"That all said personal property was, at the times of the assessment for and levy of the taxes hereinafter mentioned, subject to assessment and taxation for the several taxes and tax funds hereinafter mentioned; that under and by virtue of the laws of the State of Missouri, the then duly elected, qualified and acting Assessor of the County of St. Louis, Missouri, and his duly appointed deputies, legally and within the time prescribed by law, duly listed and assessed said property to Arthur A. Haphe, the above-named defendant, and in his name: [Here follow allegations as to the steps taken, in accordance with law, in making up the assessment books, the levy of taxes and their extension on the assessment books and the delivery of such books to the collector;] that immediately thereafter said Collector of the Revenue made demand of defendant Arthur A. Haphe for the payment of said taxes, and gave legal and timely notice to all taxpayers, including defendant, that he was ready to collect and receive the several taxes herein referred to, at the time and place set out in said notice, but notwithstanding such notice, the defendant has failed to pay the same, and the same remain unpaid, as shown by the tax bill or bills duly authenticated by the certificate of the Collector, and filed herewith and marked 'Exhibit A;' that thereafter the Collector of the Revenue in and for said county made demand for the payment of, diligently endeavored and used all lawful means to collect said taxes as required by law; that notwithstanding the demand, diligent endeavor and use of all lawful means as aforesaid, the said Collector was unable to collect said taxes, and taxes upon said personal property, so assessed and levied, still remain unpaid and due to the several funds, for the different years and in the amounts following, to-wit:

For the year, 1923, for state, state interest, State capitol

building tax, blind pension fund tax and soldiers' bonus

fund tax

$ 12.50

For county tax

43.75

For road tax

31.25

For road construction tax

31.25

For school tax, Clayton District

193.75

Amounting in all for year to

$ 312.50

"That the then Collector of said county, at the time, and in the manner and form fixed by law, made a list of delinquent personal taxes, which list included the taxes of defendant Arthur A. Haphe above referred to, and in which list all of said taxes are contained and extended for the several years for which said taxes were assessed and levied as aforesaid; that thereafter, the then Collector of the Revenue of the county aforesaid, returned said delinquent list in the manner and form prescribed by law, to the county court of said county, and said court, after doing all things required of it by law, delivered and returned to relator herein for collection according to law, the taxes contained in the delinquent tax list above referred to. . . .

"That all of said delinquent taxes due the plaintiff from the defendant Arthur A. Haphe are set forth in the tax bill of said personal back taxes, duly authenticated by the certificate of the relator, as such Collector, herewith filed, and marked 'Exhibit A.'

"That the taxes herein referred to became delinquent, according to law, on the 1st day of January next following the day when the tax books for the years herein mentioned were delivered by the County Court to the then Collector of the Revenue of said county and to relator herein, and by law it is made the duty of relator herein to proceed to enforce the payment of said taxes by suit. . . .

"Plaintiff further states that at the times herein mentioned the defendant Southern Surety Company was a corporation authorized to do and was doing business in the State of Missouri, and as such was authorized by law to become surety on bonds.

"Plaintiff further states that defendant Arthur A. Haphe, as principal, and defendant Southern Surety Company as surety, executed a surety bond in an amount required by law and by the order of the Probate Court of St. Louis County, Missouri, which bond was approved by said court, a certified copy of which bond is filed herewith and marked 'Exhibit 1;' that the conditions of said bond are that if the defendant Arthur A. Haphe shall faithfully administer said estate, account for, pay and deliver all money and property of said estate, and perform all other things touching said administration required by law, or the order or decree of any court having jurisdiction, then said bond shall be null and void, otherwise it shall remain in full force and effect; that at the time the assessments herein mentioned were made and at the time the taxes herein mentioned became due, there was sufficient funds in said estate to pay said taxes; that defendant Arthur A. Haphe made final settlement of his administration of said estate and failed to pay said taxes, and the same are now past due and unpaid.

"Wherefore, plaintiff prays judgment against the defendant, etc."

In support of the action of the court in sustaining the demurrer to said petition, respondent makes these points: (1) No breach of the bond is alleged; (2) the final settlement of the administrator...