State ex rel. Cash v. Scott

• Decision Date: 18 June 1888
• Parties: The State ex rel. Cash, Collector, Plaintiff in Error, v. Scott
• Court: Missouri Supreme Court

9 S.W. 21

96 Mo. 72

The State ex rel. Cash, Collector, Plaintiff in Error, v. Scott

Supreme Court of Missouri

June 18, 1888

Appeal from Linn Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

C Boardman for plaintiff in error.

(1) The plaintiff's declaration of law number one should have been given. Plaintiff's evidence and the agreed statement shows that plaintiff had made out a prima-facie case, and defendant's defense and evidence were immaterial and constituted no defense thereto. Acts 1867, sec. 8, p. 162; R S., 1879, sec. 6832; State ex rel. v. Harper, 83 Mo 670. (2) The plaintiff's declaration of law number two should have been given: (a) because the certificate of the county clerk to the delinquent list was immaterial so far as the trial of this cause was concerned. (See references supra). (b) Because no form of certificate is prescribed and it seems to state all the necessary facts, R. S. sec. 6824. (3) The plaintiff's declation of law number three should have been given. The mere fact that the judgment or order of the county court did not show any correction of the collector's delinquent list under section 6824, Revised Statutes, 1879, is immaterial as a defense in the case. It is insisted that said section does not require such order, and that even if required it is merely directory. Blackwell on Tax Titles, 305-311. (4) The plaintiff's declarations of law numbers four and five should have been given. They are to the effect that if the order or judgment of the county court receiving the collector's delinquent list and the certificate of the county clerk to the corrected delinquent list are defective they are not so much as to constitute a good defense. The declarations should have been given. Acts 1867, sec. 8, p. 162; R. S. 1879, sec. 6832; State ex rel. v. Harper, 83 Mo. 670.

W. H. Brownlee for defendant in error.

(1) To make a sufficient delinquent list the county court must examine, correct, order it to be certified and filed with the clerk. Acts 1872, p. 117, sec. 172. (2) Such provision is not directory. Blackwell on Tax Titles, 214, 307 et seq.; Warrensburg ex rel. v. Miller, 77 Mo. 56; Howard v. Heck, 88 Mo. 456. (3) County courts are courts of record and their proceedings are only known by their record. Dennison v. County, 33 Mo. 168. (4) Without a delinquent list filed as directed by law all subsequent proceedings are irregular if not void. Blackwell on Tax Titles, 214; Warrensburg ex rel. v. Miller, 77 Mo. 56; Ewart v. Davis, 76 Mo. 129; Howard v. Heck, 88 Mo. 456. (5) The specific ground of objection to the evidence not being stated in the agreed case nor the record it will not be considered. Baier v. Berberich, 13 Mo.App. 587; Keim v. Railroad, 90 Mo. 318.

Brace J. Ray, J., absent.

OPINION

Brace, J.

The single question presented for discussion in this case is, whether, in an action on a back-tax bill for delinquent taxes for the year 1876, a recovery can be defeated, it appearing that there was no order entered of record by the county court showing that the delinquent list returned by the collector for that year was examined and corrected by the court, and no order directing that the list as corrected be certified and filed in the office of the county clerk as required by section 172 of the revenue law of 1872. Sess. Acts, p. 117.

The delinquent list, which is the foundation of the cause of action for back taxes, is not the delinquent list returned by the collector, but that list after it has been examined and compared by the county court and the errors therein, if any corrected by the best means in their power. This corrected list they are to cause to be certified and filed in the office of the clerk. It then becomes the foundation for all subsequent proceedings by suit, for the collection of taxes therein certified to be delinquent. The back-tax book is made from it, from which the back-tax bill is copied and certified by the collector, on which suit is brought, and which is prima-facie evidence of the existence and correctness of such corrected list. This prima-fac...