State ex rel. Brown v. City of Pierre

• Decision Date: 14 May 1902
• Citation: 90 N.W. 1047,15 S.D. 559
• Parties: STATE OF SOUTH DAKOTA ex rel. HATTIE B. L. BROWN, Plaintiff and appellant, v. CITY OF PIERRE, Defendant and respondent.
• Court: South Dakota Supreme Court

15 S.D. 559

90 N.W. 1047

STATE OF SOUTH DAKOTA ex rel. HATTIE B. L. BROWN, Plaintiff and appellant,

v.

CITY OF PIERRE, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. Loring E. Gaffy, Judge Affirmed John Sutherland Attorney for appellants. Ivan W. Goodner Attorney for respondent. Opinion filed May 14, 1902

CORSON, J.

This action was instituted by the plaintiff, Hattie B. L. Brown, individually and as relator, claiming to be the owner of a tract of land in Hughes county, to restrain the City of Pierre from assessing the property of the said plaintiff, and to cancel all taxes previously levied by said city upon said property. Findings and judgment were in favor of the defendant, and the plaintiff appeals. The defendant in its answer sets up certain proceedings of the City of Pierre, through its city council, in the spring of 1890, under and by virtue of which it claims the city limits of said city were so enlarged as to include plaintiff’s property, and that the same has since been a part of the said City of Pierre. The defendant also set up certain facts which it claimed constituted an estoppel on the part of the said plaintiff from now questioning the validity of the proceedings of the common council of the said city in including the premises of the said plaintiff within said city limits. The case was tried to the court without a jury, and the court finds very fully the proceedings taken by the city council in annexing certain tracts of land to said city, including the premises of the plaintiff. It further finds that the taxes on said lands of the plaintiff, Brown, for the years 1890, 1891 and 1892, including the taxes of the State of South Dakota, County of Hughes, City of Pierre, and the board of education of the City of Pierre, were paid to the treasurer of said Hughes county by the plaintiff, Brown, through her authorized agent, as said taxes became due, and that said county treasurer issued to her, through her agent, receipts for said taxes, upon each of which receipt appeared in plain print the statement that a certain portion of said taxes was for Pierre city purposes, and another portion of said taxes was for Pierre city school taxes; that the petition for extending the boundaries of the said city of Pierre, including therein the premises of the plaintiff, Brown, was signed by the grantors of the plaintiff, Brown, and also by the said plaintiff by the name of Hattie B. Lee, which was her then name. And the court concludes, as a matter of law,

“that the acts of the defendant, City of Pierre, and its officers and agents, in assessing and levying taxes for city purposes upon the lands of the plaintiff, Hattie B. L. Brown, … for and during the years 1890, to 1898, both inclusive, were and are in all respects legal and valid, and that said city has full right and power to levy and collect such city and other taxes, and to make them a lien upon said premises, and to extend its control, for all municipal purposes over said premises.

(2) That the plaintiff, Hattie B. L. Brown, by reason of the acts of her grantors in signing said petition, and by reason of her own knowledge, acquiescence, and conduct in the premises, and her great and inexcusable laches and delay, is estopped to maintain this action.”

It is contended on the part of the appellant, in substance:

(1) That the allegations of the complaint are not denied by the answer, and hence that the defendant was not entitled to introduce any evidence under the pleadings;

(2) that the court erred in admitting evidence tending to prove the existence, loss, and contents of the original petition filed in praying for an extension of the city limits of Pierre;

(3) that the court erred in overruling appellant’s offer to prove that a majority of the property owners adjacent to the corporate limits of the said City of Pierre, so included by said city, did not sign the petition upon which the city council acted;

(4) that the findings of the court are not supported by the evidence;

(5) that the defendant has not pleaded any estoppel.

1. The answer in this case commences as follows: “The defendant, answering the complaint of the plaintiff in this action, denies each and every allegation therein contained, and not hereinafter specifically denied, admitted, or explained.” The answer then proceeds to specifically deny, admit, or explain certain allegations contained in the complaint; but the more material allegations of the same are neither specifically denied, admitted, or explained. Hence these allegations are denied by the general denial. It is insisted on the part of the appellant that under the provisions of Code, § 4914, which provides that:

“The answer of the defendant must contain:

(1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.

(2) A statement of any new matter, constituting a defense or counterclaim, in ordinary and concise language without repetition,”

—the form of the denial used by the defendant is insufficient, and is not authorized by the statute above quoted. It is true that the section provides for a general or specific denial of each material allegation of the complaint controverted, or of any knowledge or information thereof sufficient to form a belief, but the form of the denial in this case seems to be a substantial compliance with the statute. It is quite a common practice for the pleader to admit certain allegations of the complaint or counterclaim in terms, and then deny each and every other allegation in the complaint or counterclaim not specifically admitted. This method of answering, while not m strict conformity with the statute, is, m our opinion, a substantial compliance therewith, and is a matter of convenience. In Hardy v. Purington, 61 NW 158, this court uses the following language:

“We think in this case the answer must be treated as denying all the allegations of the complaint not thereinafter ‘admitted or qualified.’ So treating the answer, it follows that the allegation of the affidavit that plaintiff was a licensed and qualified teacher at the time of making the alleged contract stands denied by defendant’s answer, for such allegation is nowhere in the answer referred to, or excepted from the scope of the general denial. The answer denies ‘each and all the allegations’ not thereinafter ‘admitted or qualified.’ There is neither an admission of this allegation, nor any attempt to qualify it. It therefore remains denied.”

The same rule should be applied in this case. An analysis of the answer shows, as before stated, that some of the allegations of the complaint are specifically denied, others explained or admitted, and a number of the material allegations of the complaint are neither mentioned nor referred to in any manner, and hence are denied by the general denial. We think that the general or specific denials in the answer in this case are sufficient. If the appellant required more specific denials, she should have moved the court to have the answer made more definite and certain. Hardy v. Purington, supra; Greenfield v. Insurance Co., 47 NY 430. No such motion was made in this case, the objection being taken to the admission of evidence on the ground that the allegations in the complaint were not denied, and a motion made at the close of the trial to strike out all the evidence of the defendant on the same ground. We are of the opinion that the court ruled correctly in denying these motions.

2. On the trial the defendant introduced evidence tending to prove that there was an original petition presented to the city council of the city of Pierre for the extension of the city limits of the said city on or about February 2, 1890, and that the original petition was lost. It then called witness Horner to prove that the copy of the petition published by the order of the city council as required by the law then in force was a true copy of the petition so presented to the city council and lost. He was asked the following question:

“Now hand you an affidavit of one H. P. Robie, which was produced by the witness John H. McCord (city auditor), which has attached to it the purported petition or copy of the petition; and I will ask you to state whether or not that is a copy of the petition that was referred to you on February 3, 1900, by the city council of the ...