State ex rel. Bauer v. Edwards

• Decision Date: 15 December 1896
• Parties: The State ex rel. Bauer, Collector, v. Edwards et al., Plaintiffs in Error
• Court: Missouri Supreme Court

38 S.W. 73

136 Mo. 360

The State ex rel. Bauer, Collector, v. Edwards et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

December 15, 1896

Error to Cole Circuit Court. -- Hon. D. W. Shackleford, Judge.

Reversed and remanded.

Edwards & Edwards for plaintiffs in error.

(1) Before the city could proceed to institute proceedings to recover the taxes alleged to be due against the property in the petition mentioned, it was required of the city collector to employ an attorney and his appointment or employment must first meet the approval of the mayor. R. S. 1889, secs. 7681 2064. (2) There was no valid assessment of the taxes attempted to be collected. The act of 1889 required the city assessor to make the assessment jointly with the county assessor, and that this assessment should be the bases upon which to levy a tax. Acts 1889, pp. 37, 38. This act was never repealed but in some way was omitted from the revision of 1889 but it could not be repealed by a revising committee in that way. R. S. 1889, sec. 6600. (3) The petition is fatally defective and the evidence is insufficient to support the judgment. (4) The description of the property in the tax bill sued on is too vague and indefinite to sustain the judgment. City of Jefferson v. Whipple, 71 Mo. 519; Alexander v. Hickok, 34 Mo. 496; Ewart v Davis, 76 Mo. 129. (5) The revenue law makes the tax bill prima facie evidence that the amount stated therein is correct, but when an irregularity is shown the prima facie character of the bill is destroyed. State ex rel. v Scott, 96 Mo. 72. No presumption is made in favor of tax bills. Property must be described in them so as to be found. Nelson v. Goebel, 19 Mo. 161; sections 1545, 1546 and 7681, R. S. 1889, Laws 1889, sections 3 and 7, p. 37. (6) The cause was improperly revived against the heirs of E. L. Edwards. The court could not burden the widow's interest with a judgment for taxes. R. S. 1889, sec. 183, subdiv. 111. State ex rel. v. White, 61 Mo. 441; Graves v. Cochran, 68 Mo. 78.

A. M. Hough for defendant in error.

(1) The fact that it appears that A. M. Hough's appointment as attorney for the relator was approved by the city council instead of by the mayor as contemplated by the statute (R. S. 1889, sec. 7681), does not constitute reversible error. First. The objection is similar to one for defect of parties, and should have been made by demurrer or answer. State, etc., v. Sappington, 68 Mo. 454; Crook v. Tull, 111 Mo. 283; Franke v. St. Louis, 110 Mo. 516; Bank v. Gilpin, 105 Mo. 17. Second. The objection was not even raised in the motion for a new trial, and it is certainly too late to make it for the first time on appeal. Hammons v. Renfrow, 84 Mo. 332. Third. The suit was brought by the proper party, i. e., by the city collector as relator, and the only matter of which plaintiff in error could possibly complain is the taxation of ten per cent attorney's fees. But no judgment is set out in abstract of plaintiffs in error, and this court can not surmise that such fees were taxed. (2) The assessment of taxes was properly made. The act of May 20, 1889, referred to by opposing counsel, was repealed by the revised bill relating to cities, towns, and villages, approved June 18, 1889, and the assessment was properly based on the return of the county clerk in accordance with the provisions of said revised bill. R. S. 1889, secs. 1545, 1546, 1547; State, etc., v. Herndon, 74 Mo. 410. A statute purporting to cover an entire subject repeals all former statutes on the same subject, either with or without a repealing clause, and notwithstanding it may omit material provisions of the earlier statute. Terrell v. State, 86 Tenn. 523; Millay v. White, 86 Ky. 170; Butler v. Sullivan County, 108 Mo. 630. And the repeal necessarily follows where, as in the case at bar, the two statutory provisions are irreconcilably repugnant. (3) The suit was properly revived against the present defendants as heirs of the original defendant. R. S. 1889, secs. 2196, 2197; Fine v. Gray, 19 Mo. 23. Besides, this objection was waived, it not having been made at the time of the revivor at the December term, 1894, of the trial court. For aught that appears on the record, the defendants may have consented to the revivor as entered. (4) The defense of the statute of limitations is not well taken. The petition was filed May 4, 1894, and counted on delinquent taxes for the years 1889, 1890, 1891 and 1892, and the tax bills offered in evidence were for these years. The taxes for 1889 were not delinquent until January 1, 1890, hence they were not barred by the five years' statute. R. S. 1889, sec. 7692; Ibid., sec. 7670. (5) The tax bills made a prima facie case for plaintiff; this included the correctness of the assessment. State, etc., v. Maloney, 113 Mo. 367. (6) The alleged omission of the signature of the attorney to the petition is an immaterial matter, especially in view of the fact that the body of the petition discloses the attorney. See Wolf v. Ward, 104 Mo. 129; Ivy v. Yancey, 129 Mo. 502. No error should form a basis for a reversal unless it has actually been prejudicial to the substantial rights of the complaining party. Coombs Com. Co. v. Block, 130 Mo. 668. (7) The return of assessment for the year 1888, made by John Scheperle as assessor of Cole county is irrelevant, as no taxes were, for the year 1888, sued for or proved up.

OPINION

Macfarlane, J.

This suit is for the enforcement of the lien upon certain lots in Jefferson City for city taxes, alleged to be due thereon for the years 1889, '90, '91, and '92. The suit was commenced against E. L. Edwards, who was at the time the owner of the lots. Said defendant died testate, pending the suit in the circuit court, and the cause was revived against his devisees under the will.

The city is of the third class, under the general laws of the state, and relator Bauer is the collector thereof. The petition is in the usual form adopted in suits by county collectors to enforce the state's lien, the basis of the suit being a tax bill for delinquent taxes.

Defendants by answer put in issue the validity of the assessment and plead the statutes of limitation to certain of the taxes. The other objections can be more conveniently noted in the opinion.

Judgment was rendered for plaintiff and defendants bring the case to this court for review, by writ of error.

I. The first objection urged by plaintiff in error is that it was not shown that A. M. Hough, who signs the petition as attorney for relator, was authorized, as required by the charter of the city, to prosecute the suit. It was admitted on the trial that the city collector employed A. M. Hough, Esq., to prosecute the suit, and that his employment was approved by the council of said city. But it is insisted by defendants that the appointment was not valid and the attorney had no authority to act because the employment does not appear to have been approved by the mayor.

For the purpose of prosecuting suits for the collection of delinquent city taxes the collector is given power, with the approval of the mayor, "to employ such attorneys as he may deem necessary." R. S. 1889, sec. 7681. The mayor is the presiding officer of the council, and must be presumed to have cognizance of, and to approve, all its proceedings. The approval by the council implies, also, in the absence of proof to the contrary, the approval of the mayor. We think there is no merit in this objection.

II. It is next objected that the suit was improperly revived in the names of the defendants, for the reason, as is alleged, that they are not joint owners of the lots against which the taxes are charged. It is not disputed that E. L. Edwards, the original defendant, was the owner of the land at the time of his death. Nor is it claimed that the present defendants, in whose names the action was revived, are not the heirs at law and sole devisees of E. L. Edwards, deceased.

The suit is not to secure a personal judgment against the owner, but to enforce the lien of the city against the land. In case of the death of a defendant, pending a suit, the cause may be revived against the representative or successor of the deceased party. Where the suit is to recover real estate, or where the real estate is to be directly affected by the suit, the cause is properly revived in the name of the successor, that is, the person who succeeds to the rights of the deceased defendant in the land in question. The suit does not abate by the death and the fact that, under the will, the rights to which the parties succeed are several and not joint can make no difference for no personal judgment can be rendered against any of them. The judgment is against the lots for the taxes, penalties, and interest due on them respectively.

Any defendant who makes no claim to any of the lots, can, by entering a proper disclaimer, be discharged from the suit, and any defendant who claims a several right to a particular lot can pay the taxes thereon and thereby secure a discharge, or he can defend against the particular tax.

We are of the opinion that the suit was properly revived in the names of the heirs and devisees. No objection was made, in the circuit court, to the revival by any of the parties, and the rights of no defendant are...