State ex rel. Arnold v. McCune
| Decision Date | 05 March 1923 |
| Docket Number | 23286 |
| Citation | 252 S.W. 657 |
| Parties | STATE ex rel. ARNOLD v. McCUNE |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied June 8, 1923.
Appeal from Circuit Court, Callaway County; David H. Harris, Judge.
Affirmed.
Suit by the State, on the relation of C. B. Arnold, Collector, etc against Jeff D. McCune. Judgment for plaintiff, and defendant appeals.
N. T. Cave, of Fulton, and Pearson & Pearson, of Louisiana, Mo., for appellant.
A. C. Whitson, of Mexico, Mo., and Baker & Baker, of Fulton, for respondent.
Statement.
The plaintiff brought this suit in the circuit court of Audrain county against the defendant on certain personal delinquent tax bills. The cause was taken by change of venue to Callaway county, and there tried in the circuit court by agreement of parties before the court without a jury. The court found for the plaintiff (the respondent) and against the defendant (the appellant), and in due time and proper form the appellant appealed the cause to this court.
While the evidence is very voluminous, the record covering more than 165 printed pages, yet, as I understand the facts to be, there was only one question of fact involved in the trial of the cause, and that was the residence of the defendant, McCune; in other words: Was he a resident of Pike county or of Audrain county?
Opinion.I. We have carefully read and considered the evidence in the case, and hold that there was substantial evidence tending to prove the contention of each of the parties to the case. Especially to make an issue of fact for the court sitting as a jury to pass upon, and that finding having been against the appellant, he is forever foreclosed thereby in this court, to gainsay it.
II. Counsel for appellant first contend that the petition was defective because it did not state that the appellant was a resident of Audrain county, and therefore his objection to the introduction of all evidence should have been sustained.
In our opinion this contention is not tenable for the reason that appellant gave in a tax list, although for a smaller sum than that for which he was assessed, yet that entered his appearance to the tax proceeding in Audrain county, and, when that was followed up by the issuance of the tax bill, and all of the necessary intermediate steps having been taken, made a prima facie case for the respondent. State v. Renshaw, 166 Mo. 682 at 688, 66 S.W. 953; State ex rel. v. Harrison, 226 Mo. 158 at 167, 125 S.W. 1115.
This point is ruled against the appellant.
III. Counsel for respondent contend that the assessing authorities had jurisdiction of the person of the appellant, and that he entered his appearance in the cause when he gave the list to the assessor; and when an opportunity was given him for a rehearing on the increased assessment made by the board of equalization, as in this case, it was as to him due process of law, and he was bound thereby, and that the matter is therefore res adjudicata, and he is estopped to set up in this action that he was not properly assessed in Audrain county for that year. The following authorities seem to support that contention of counsel: State ex rel. v. Harrison, 226 Mo. 158, 125 S.W. 1115, loc. cit. 167, 125. S.W. 1115; State ex rel. v. Springer, 134 Mo. 212, 224, 35 S.W. 589; State ex rel. v. Timbrook's Estate, 240 Mo. 226, 144 S.W. 843; State ex rel. v. Baker, 170 Mo. 383 at 392, 70 S.W. 872; State ex rel. McCune v. Carter, 279 Mo. 304, 214 S.W. 180; State ex rel. v. Board of Equalization, 108 Mo. 235, 18 S.W. 782; State ex rel. v. Bank, 120 Mo. 161, 175, 25 S.W. 372. W. 372; Sturges v. Carter, 114 U.S. 511, 5 S.Ct. 1014, 29 L.Ed. 240; State ex rel. v. Gaylord, 73 Wis. 306, 41 N.W. 518; Hagar v. Recl. Dist., 111 U.S. 701, 4 S.Ct. 663, 669, 28 L.Ed. 569; Hibben v. Smith, 191 U.S. 310, 24 S.Ct. 88, 48 L.Ed. 195; 26 R. C. L. 348, § 305.
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