State ex rel. and to Use of Marlowe v. Nolan

• Decision Date: 04 January 1941
• Docket Number: 36880
• Parties: State of Missouri at the relation and to the use of L. D. Marlowe, Collector of the Revenue of New Madrid County, Defendant in Error, v. Gertie Nolan, Imogene Nolan, Minor; Gertie Nolan, Guardian and Mother of Imogene Nolan; Federal Land Bank, and Little River Drainage District, Defendants, Imogene Knight, nee Nolan, Plaintiff in Error
• Court: Missouri Supreme Court

146 S.W.2d 598

347 Mo. 124

State of Missouri at the relation and to the use of L. D. Marlowe, Collector of the Revenue of New Madrid County, Defendant in Error, v. Gertie Nolan, Imogene Nolan, Minor; Gertie Nolan, Guardian and Mother of Imogene Nolan; Federal Land Bank, and Little River Drainage District, Defendants, Imogene Knight, nee Nolan, Plaintiff in Error

No. 36880

Supreme Court of Missouri

January 4, 1941

Writ of Error to New Madrid Circuit Court; Hon. John E Duncan, Judge.

Reversed.

R W. Hawkins and N. C. Hawkins for plaintiff in error.

The judgment in the tax suit should be reversed and the cause remanded and the sale of appellant's interest in the lands should be annulled for the following reasons: The court erred in rendering the judgment in the tax suit against this appellant as defendant, Imogene Nolan, minor, in said suit without appointing a guardian ad litem for her. Sec. 1036, R. S. 1929; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 981. Tracts 2 and 3 were described in the petition as follows: Tract No. 2. North part of the Southwest quarter of the Southeast quarter. Tract No. 3. North part of the Southeast quarter of the Southeast quarter. Such descriptions were so indefinite no valid assessment could have been made of taxes and without a valid assessment no taxes can be collected or judgment rendered for taxes. State ex rel. Martin v. Childress, 134 S.W.2d 136. The tax suit purported to be for taxes for 1926 and 1927 on three different tracts of land. The judgment was for a lump sum amount for both years on all three tracts. Such judgment was erroneous on its face.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Writ of error to the Circuit Court of New Madrid County. From the return we ascertain that on July 29, 1929, the collector of New Madrid County, to enforce the State's lien for real estate taxes for 1926 and 1927, on three separate tracts of land, filed suit against Gertie Nolan, Imogene Nolan, a minor, Federal Land Bank, and Little River Drainage District. Service was had, and on October 15, 1929, judgment by default was taken as to all defendants for $ 315.96 plus costs, and the judgment was made a special lien on the land as described in the petition. Special execution was issued and the land, as described, was sold January 27, 1930, to Opal Baskin for $ 200, and sheriff's deed was made and acknowledged.

July 17, 1939, Imogene Knight (Imogene Nolan) filed here petition in this court for writ of error, and the writ issued same day. The return, a certified copy of the proceedings in the tax suit, was filed July 25, 1939. Notice of the writ required by Sec. 1051, R. S. 1929, 2 Ann. Stat., p. 1335, was served on the collector and county clerk of New Madrid County, and notice was acknowledged by Opal Baskin and by the tax attorney for the collector (Marlowe) at the time the tax suit was filed and when judgment therein was taken.

Our jurisdiction is not challenged, but it is our duty, nevertheless, to determine such question when it occurs. [State ex rel. Martin v. Childress, 345 Mo. 495, 134 S.W.2d l. c. 138.] As stated, judgment in the tax suit went by default. The writ of error brought up the record proper. It was stated in the petition, in the tax suit, that the three tracts of land involved were in Sec. 19, Twp. 23, R. 12, New Madrid County, Missouri, and these were described respectively as follows: Tract No. 1, "north half of the southeast quarter;" Tract No. 2, "north part of the southwest quarter of the southeast quarter;" Tract No. 3, "north part of the southeast quarter of the southeast quarter." (Italics ours.) The description in the judgment is to the same effect. The Supreme Court has jurisdiction of appeals and writs of error "in cases involving the construction of the revenue laws of this State." Section 12, Art. 6, Constitution, and one ground of attack upon the validity of the tax suit judgment is the description of tracts 1 and 2. It is alleged in the tax suit petition that the assessor for the years involved assessed the amount against each tract, made out the assessor's book, and entered thereon "the said above described tracts of land," etc. The various steps taken to get the land on the tax books were alleged, but it is not necessary to set out in detail. State ex rel. Martin v. Childress, supra, was an action by a county collector to enjoin the moving of a house from a half acre tract of land upon which there were taxes due and unpaid. The trial court made the temporary injunction permanent and defendant appealed to this court. It was contended that the description, a "part of NW 1/4 NW 1/4, Sec. 23, Twp. 27, Range 17" was not sufficient to support assessment for taxes. Such being an issue, we held that jurisdiction of the appeal was in the Supreme Court because the construction of the revenue laws was involved, and we so rule in the present case.

"The suing out of a writ of error is the commencement of a new suit to annul and set aside the judgment of the court below and is not a continuation of the suit below to which it relates." [Winchester et al. v. Winn et al., 225 Mo.App. 288, 29 S.W.2d 188, l. c. 190, and cases there cited. See also Spotts et al. v. Spotts et al., 331 Mo. 917, 55 S.W.2d 977, l. c. 980.] Although a new suit, petitioner styled the case same as the case below was styled, except she designated the plaintiff below as defendant in error and designated herself, a defendant below, as plaintiff in error.

"Writs of error upon any final judgment or decision of any circuit court, or other court of record having concurrent jurisdiction with the circuit court, in all cases, are writs of rights," Sec. 1034, R. S. 1929, 2 Ann. Stat., p. 1327, but the suit commenced by writ of error "must contain, on its face, the evidence of the right of the plaintiff in error to a review." [Fidelity Trust Co. v. Mexico, S. F. & P. Traction Co., 270 Mo. 487, 194 S.W. 52, l. c. 54.] And "if there be several persons against whom any judgment shall have been recovered and entitled to bring a writ of error thereon, living at the time of bringing such writ, they shall all join in such writ, except where it is otherwise provided by law; and if any are omitted, the writ shall be quashed on motion of the defendant in error, made at any time before submission upon due proof of the facts by affidavits, unless one or more of such persons be allowed to proceed by the supreme court or courts of appeals." [Sec. 1038, R. S. 1929, 2 Ann. Stat., p. 1331.] Only Imogene, of the defendants...