State ex rel. Hayes v. Seahorn

• Decision Date: 08 June 1897
• Parties: The State ex rel. Hayes, Collector, Appellant, v. Seahorn, Administrator
• Court: Missouri Supreme Court

39 S.W. 809

139 Mo. 582

The State ex rel. Hayes, Collector, Appellant, v. Seahorn, Administrator

Supreme Court of Missouri, Second Division

June 8, 1897 ^[*]

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Reversed.

H. M Meriwether for appellant.

(1) Under our statute no mere irregularity of any kind should invalidate the tax. The fact that the valuation determined by the assessor was placed in the assessment book for the year 1887 under the column headed "Valuation adjusted by the county board of equalization" was a mere irregularity. R. S. 1889, secs. 7563 and 7708; Black v. McGonigle, 103 Mo. 192; Thomas v. Chapin, 116 Mo. 396; Railroad v. County Clerk, 57 Mo. 223. (2) The notices delivered to Scruggs to list his property were sufficient. Absolute correctness and technical particularity are not required in such cases. R. S. 1889, secs. 7563, 7708 7532; Thomas v. Chapin, 116 Mo. 396; State ex rel. v. Phillips, 102 Mo. 664; Black v McGonigle, 103 Mo. 192; State ex rel. v. Bank, 120 Mo. 161; State ex rel. v. Schooley, 84 Mo. 447; Endlick on Con. of Stat., sec. 392; Wade on Notice, sec. 1160. (3) The affidavit of the assessor complied with all of the legal requirements. Every fact required by law to be stated in this affidavit is therein stated. Greater precision is not necessary. R. S. 1889, secs. 7563 and 7708; State ex rel. Miller v. Hutchinson, 116 Mo. 399; State ex rel. Brassfield v. Hurt, 113 Mo. 90; State ex rel. v. Bank, 120 Mo. 161; State ex rel. v. Phillips, 102 Mo. 664; Platte Land Co. v. City, 11 Neb. 344. (4) Section 7567, Revised Statutes 1889, does not require that a copy of the assessment list be delivered to the owner in any case except where such copy is demanded, but even if this were not true, the failure to deliver such copy would not defeat the jurisdiction of the assessor, nor invalidate the tax. Meyer v. Rosenblatt, 78 Mo. 495; Deane v. Todd, 22 Mo. 90; State ex rel. v. Railroad, 113 Mo. 297; Charley v. Kelley, 120 Mo. 134. (5) In making assessments for personal taxes, where the person notified has refused to make a list, it is not necessary for the assessor to itemize and specify any particular property. The valuation in gross is sufficient. R. S. 1889, sec. 7564; Burgh. on Taxation, pp. 4, 238 and 245: Adams v. Sleeper, 24 A. 990; Rockland v. Ulmer, 84 Me. 503; Cooley on Taxation [2 Ed.], pp. 351 and 750. (6) Section 7569, Revised Statutes 1889, fixes June 1 as the date on which all persons become liable for taxes for the ensuing year. Therefore it was immaterial that Scruggs removed from Jackson county the September following the assessment made June 1, 1889, for the taxes of 1890. Cooley on Taxation [2 Ed.], p. 355; Burroughs on Taxation, sec. 7. (7) The objection to the school taxes that the clerk failed to enter them up in a separate school tax book, is purely technical, and besides it is not required by statute. R. S. 1889, secs. 8067 and 8094; State ex rel. v. Railroad, 113 Mo. 297; Robbins v. Barron, 33 Mich. 124; State ex. rel. v. Harper, 83 Mo. 670; City of Rockland v. Ulmer, 84 Maine, 503; Railroad v. County Court, 50 N.W. 937. (8) The failure of the school board to certify an estimate of the amount of funds necessary was an immaterial variation from the statutory requirement, and should not invalidate the tax where they did certify the rate to be levied as in this case. Railroad v. Gracey, 29 S.W. 579. (9) This action was not brought under section 7626, Revised Statutes 1889, but under section 183, Revised Statutes 1889, providing for the proving up of taxes against the estates of deceased persons; hence the taxes for the year 1887 are not affected by the decision in the case of State ex rel. v. Hoyt, 123 Mo. 348. State ex rel. v. Tittmann, 103 Mo. 553; Greeley v. Bank, 98 Mo. 458; State ex rel. v. Severance, 55 Mo. 378.

R. H. Field for respondent.

(1) When there is no pleading filed by the plaintiff, or one that is fatally defective, the judgment is rightfully rendered against him and can not be reversed by this court for any error of the trial court, though such lack or defective pleading was not the reason of the trial court for the judgment it rendered. Tate v. Barcroft, 1 Mo. 163; Wear v. McCorkle, Id. 588; Vaughan v. Daniels, 98 Mo. 230. (2) The judgment in this proceeding could not have been rightfully for the plaintiff when he filed neither a petition nor statement of any cause of action nor any account against the defendant in the probate court. It was intended by section 7626, Revised Statutes 1889, that the tax bill should have a probative effect only in a suit for personal taxes, and not that it should be considered a pleading. Vaughan v. Daniels, 98 Mo. 230; Oxley Stave Co. v. Whitson, 34 Mo.App. 624; Seligman v. Rogers, 113 Mo. 643; Watkins v. Donnelly, 88 Mo. 322; State ex rel. Brassfield v. Hurt, 113 Mo. 94; State ex rel. Miller v. Hutchinson, 116 Mo. 399. (3) The giving of the notice required by section 7532, Revised Statutes 1889, is the process, and the only process whereby the assessor can force the citizen to list his personal property for taxation or submit to any jurisdiction of the assessor to value or assess the same for the purpose of taxation, and an assessment by the assessor without such notice is not merely erroneous or irregular but is utterly void for lack of jurisdiction in the assessor to act upon the subject. State ex rel. v. Spencer, 114 Mo. 574; State ex rel. v. Hoyt, 123 Mo. 348; Cooley on Taxation [2 Ed.], pp. 288, 365, 660. (4) And the same rule applies to the failure of the assessor to give the other notices to the deceased of the pretended assessments which were made in his absence, required by section 7567 of the statutes, either by notifying him personally or by leaving a duplicate of such assessments with a member of his family. Railroad v. Cass Co., 53 Mo. 18; Cooley on Taxation [2 Ed.], pp. 287, 288, 365, 660. (5) The assessment is void because the certificate of the assessor to the assessment books are not in statutory form. R. S. 1889, sec. 7571; Marsh v. The Supervisors of Clark Co., 42 Wis. 515; Dickinson v. Reynolds, 48 Mich. 159; Shattuck et al. v. Bascom, 105 N.Y. 39; Brevoort v. City of Brooklyn, 89 N.Y. 128; Merritt v. Village of Partchester, 71 N.Y. 309; Stebbins v. Kay, 123 N.Y. 36; State ex rel. Harvey v. Cook, 82 Mo. 185; State ex rel. Neill v. Phillips, 102 Mo. 668. (6) The defects and omissions of the assessor's proceedings are not cured or obviated by either section 7563 or 7708. Stephan v. Daniel, 27 Ohio St. 527; Servoll v. City of St. Paul, 20 Minn. 511; Matter of petition of Hearn, 96 N.Y. 378.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This suit was begun in the probate court of Jackson by the collector of the revenues of that county against the defendant, as administrator of the estate of Phineas T. Scruggs, to recover the State, county, and school personal taxes, assessed and levied for the years 1887, 1888, 1889 and 1890. There was judgment in favor of plaintiff in the probate court, from which defendant appealed to the circuit court of said county, where, upon a trial de novo, there was judgment for defendant; thereupon plaintiff appealed to this court. There was no statement or pleading filed in the cause, other than the back tax bill certified to by the collector.

The case was tried upon the following agreed statement of facts: It is agreed by and between plaintiff and defendant in the above entitled cause, that said cause may be tried and submitted upon the following agreed statement of facts, to wit: That up to the second of September, 1889, Phineas T. Scruggs was a resident of Jackson county, Missouri, and since then to the time of his death he resided in Wyandotte county, Kansas. That in December, 1891, he died intestate at his home on that date, in Wyandotte county, Kansas, and that on and before the twentieth day of December, 1892, Thomas J. Seahorn was duly appointed as administrator of the estate of said Phineas T. Scruggs in Jackson county, Missouri, and duly qualified as such administrator. That the back tax bill allowed as a claim against the defendant as administrator by the probate court as heretofore attached, purporting to show personal back taxes due from the said Phineas T. Scruggs on personal property for the years 1887, 1888, 1889 and 1890, was presented and signed by Elihu W. Hayes, who was at the time of signing and issuing of the same the duly acting and qualified collector of the revenue within and for Jackson county, Missouri; that the same was duly delivered to H. M. Meriwether. That H. M. Meriwether is now, and was at the time of presenting this tax bill to the probate court for allowance, the duly appointed attorney of the collector of Jackson county, under and pursuant to a contract in writing duly entered into by said collector with said H. M. Meriwether, by which the said H. M. Meriwether is entitled to a commission of ten per cent upon the sums actually collected and turned into the treasury in all back suits; which said contract was duly approved by the county court of Jackson county, as required by law. Said tax bill is in words and figures as follows:

"BACK TAX BILL.

"State of Missouri,] ss.

"County of Jackson.] ss.

"I, Elihu W. Hayes, collector of the revenue within and for the county of Jackson, in the State of Missouri, do hereby certify that the following amounts of personal taxes remain delinquent in favor of the several funds for the several years, and assessed against the party set opposite thereto, to wit:

Years

Name.

Delin-

Valua-

State

County

quent.

tion.

Tax.

Tax.

Phineas T.

1887

$ 25,000

$ 100.00

$ 87.50

Scruggs,

1888

25,000

100.00

25.00

1100 E. 12th Street,

1889

25,000

75.00

87.50

and Hotel...