State ex rel. Hibbs v. McGee, 29738.

• Decision Date: 20 November 1931
• Docket Number: No. 29738.,29738.
• Citation: 44 S.W.2d 36
• Parties: THE STATE at Relation and to Use of W.C. HIBBS, Treasurer and Ex-Officio Collector of the Revenue of Texas County, v. W.J. McGEE, Trustee Under Will of W.A. NEWTON, L.L. NEWTON, D.L. NEWTON, ROLLIE H. NEWTON, BLANCH BOOZ, ANNIE F. KIDSON, ELLA S. DEEWALL, LAURA A. ALSTROM, HENRY F. CRAIG, SANFORD D. CRAIG, WILLIAM C. NEWTON, IRENE RAMSEY, THOMAS NEWTON, CORA NEWTON, LORINDA NEWTON, OSCAR NEWTON, H.A. CRAIG, and NEWTON BURIAL PARK, Appellants.
• Court: Missouri Supreme Court

44 S.W.2d 36

THE STATE at Relation and to Use of W.C. HIBBS, Treasurer and Ex-Officio Collector of the Revenue of Texas County, v. W.J. McGEE, Trustee Under Will of W.A. NEWTON, L.L. NEWTON, D.L. NEWTON, ROLLIE H. NEWTON, BLANCH BOOZ, ANNIE F. KIDSON, ELLA S. DEEWALL, LAURA A. ALSTROM, HENRY F. CRAIG, SANFORD D. CRAIG, WILLIAM C. NEWTON, IRENE RAMSEY, THOMAS NEWTON, CORA NEWTON, LORINDA NEWTON, OSCAR NEWTON, H.A. CRAIG, and NEWTON BURIAL PARK, Appellants.

No. 29738.

Supreme Court of Missouri.

Division One, November 20, 1931.

Appeal from Texas Circuit Court. — Hon. W.E. Barton, Judge.

REVERSED AND REMANDED.

M.T. January for appellant Newton Burial Park.

(1) Personal property must be assessed in the county in which the owner resides and be assessed to the owner or person having "care, charge or management thereof" as of first day of June, each year. Laws 1923, p. 376; State ex rel. Ziegenhien v. McCausland, 154 Mo. 185; State ex rel. Kelly v. Shepherd, 218 Mo. 656. It follows the petition does not state a cause of action against Newton Burial Park. (2) Newton Burial Park is not shown by the petition to be a necessary or even proper party defendant, because not shown to be jointly liable for the tax. Hence there is a misjoinder of defendants. (3) The petition does not ask for a personal judgment, yet the action is one purely at law, and governed by the General Practice Act. R.S. 1919, sec. 12932; State ex rel. v. Haphe, 31 S.W. (2d) 788. (4) The judgment is a nullity on its face, hence no motion in arrest is necessary to reach the defect. It seeks to enforce a judgment against no one, for taxes due, out of a fund said to be in the hands of the circuit clerk. Such fund is in custodia legis.

Barton & Moberly for respondent.

(1) The State has a paramount right to be paid taxes. Where the statutory remedies are defeated or hindered by the assets passing into the custody of the courts, it is the duty of the court to respect that paramount right and to make proper order to insure the payment of such taxes. Greeley v. Provident Savings Bank, 98 Mo. 458; State ex rel. v. Riley, 4 S.W. (2d) 482; State ex rel. v. Miss. Valley Trust Co., 209 Mo. 472. (2) Equity has jurisdiction unless the remedy at law is plain, adequate and complete. 21 C.J. 50, 51; Greeley v. Bank, supra; State ex rel. v. Riley, supra. (3) All persons who are materially interested in the event of the suit or in its subject-matter should be made parties thereto. 21 C.J. 258; 47 C.J. 16, 17; 47 C.J. 72, 73.

ATWOOD, J.

The Treasurer and ex-officio Collector of Texas County, Missouri, brought suit in the circuit court of said county for delinquent taxes, accrued interest and costs against W.J. McGee, sole surviving trustee under the will of W.A. Newton, deceased, the Newton Burial Park, a corporation, and other alleged claimants of a trust fund assessed for said taxes who are named as the remaining appellants in caption hereof. Defendant, Newton Burial Park, filed separate demurrer to plaintiff's amended petition, and the other defendants also demurred. All demurrers were overruled, defendants refused to plead further, and at its November Term, 1928, said court adjudged, decreed and ordered that plaintiff recover of and from the defendants a special judgment for the sum of $1337.95, together with costs, including attorney's fees, and have a lien therefor against said trust fund in the hands of the clerk of said court, and that said clerk pay said judgment out of said fund in whatever form it might be converted or transferred, and that special execution issue therefor. From this judgment defendants have appealed.

One of the pleaded grounds of demurrer urged in this appeal is that the petition fails to state a cause of action against any of the defendants. In our further discussion of the case it will appear that this is not a mere question of practice, as in State ex rel. v. Holland, 186 Mo. 222, 85 S.W. 356, but fairly involves the construction of revenue laws of the State. [State ex rel. v. Adkins, 221 Mo. 112, 119 S.W. 1091, and cases cited; State ex rel. v. Haphe (Mo. Sup.), 31 S.W. (2d) 788; State ex rel. v. Young (Mo. Sup.), 38 S.W. (2d) 1021, and cases cited.] Hence, we have jurisdiction.

It appears from said petition that the tax in question is upon $50,500 in money and notes therein alleged to have been duly assessed for the year 1924 to W.J. McGee, sole surviving trustee under the will of W.A. Newton, deceased. It further appears that thereafter, on June 6, 1926, the said W.J. McGee "paid said money in to the Texas County Circuit Court until it should be determined which of the defendants were the actual owners of same and entitled thereto; that the defendants herein, other than the said W.J. McGee, are still litigating for the said amount and that the greater part of said money is still in the hands of the Circuit Clerk of Texas County." Said petition also alleged the adoption of township organization by Texas County and that same was in full force and effect at all dates therein mentioned; that the domicile of said defendant, W.J. McGee, was in Piney Township, in said county, and that the property assessed as aforesaid was "the personal property of said defendant, as owner thereof." The other allegations contained in said petition are conventional, and the concluding part of said petition is as follows:

"Wherefore, the State of Missouri, at the relation and to the use of W.C. Hibbs, Collector of the Revenue within and for said Township of Piney, County of Texas, Missouri, prays judgment at the relation and to the use aforesaid, for the sum of $1337.95, aggregate amount of said taxes, interests and clerk's fees, with interest thereon at the rate of ten per cent per annum from the date of making out said back tax book, together with fees, commissions and costs of this proceeding, and that the same be declared a lien in favor of the State of Missouri, for the amount due on said personal property respectively, and that the lien be enforced, and said personal property, or so much thereof as may be necessary to satisfy said judgment, interest, clerk's fees, commissions and costs thereon, be sold, and that an execution be issued thereon.

"Plaintiff further states that said money, being in the hands of the circuit clerk and not assessed to the said circuit clerk, would not be subject to execution; that plaintiff has no adequate remedy at law for collection of said taxes; wherefore, plaintiff prays the court as the court of equity to order the said clerk to pay all of said taxes and costs out of the funds in his hands."

The judgment rendered in said cause, omitting caption, is as follows:

"Now on this 17th day of November, 1928, comes the said plaintiff, W.C. Hibbs, in person and by counsel, and the defendants appear by counsel and file demurrers to plaintiff's petition, which demurrers are by the court overruled and that defendants refusing to plead further and it appearing by the petition that the plaintiff is entitled to recover of and from the defendants the sum of $1337.95 taxes, interest and clerk's fees, and the sum of $133.79 attorney fees and taxes for the year 1926; that the defendant, W.J. McGee, is the sole surviving trustee under the will of the late W.A. Newton, deceased, and was on the 1st day of June, 1925, a resident of Piney Township, Texas County, Missouri, and has in his possession the sum of $50,500 in money and notes, and that the same was duly assessed and taxes legally levied thereon in the amounts above named for the year 1926; that said money has since the date of its assessment the amount left of such fund consisting of $25,296.85, been paid into the hands of the Circuit Clerk of Texas County, by the said trustee and that said trustee has been discharged by an order of court and that all of the other defendants except the trustee and the circuit clerk are interpleading for such money and they are still litigants therefor, and the money is still in the hands of the Circuit Clerk of Texas County; that such clerk is not subject to execution or garnishment and that plaintiff has no adequate remedy at law by which to collect such taxes.

"The court further finds that the aggregate amount of taxes, interest and clerk's fees is $1337.95, and that the same, together with costs in this action, is a charge and lien in favor of the State of Missouri, against the said moneys in the hands of the circuit clerk aforesaid.

"Wherefore, it is adjudged, decreed and ordered by the court that the plaintiff recover of and from the defendants a special judgment for the sum of $1337.95, together with the costs in this suit, including attorney fees, and have a lien against the money aforesaid, in the hands of the circuit clerk aforesaid, for the amount of taxes, interest and cost herein adjudged as above set forth, and that the circuit clerk pay out of the funds in his hands the said judgment and cost above mentioned, and that the plaintiff be entitled and authorized to collect this judgment out of the funds now in the hands of the circuit clerk, in whomsoever hands and whatever form it may be converted or transferred, and that special execution and order issue therefor."

Did plaintiff's petition state a cause of action? In the early case of City of Carondelet v. Picot, 38 Mo. 125, 130, we held that the levying of taxes is a matter solely of statutory creation,...