State ex rel. Moore v. White

• Decision Date: 31 October 1875
• Citation: 61 Mo. 441
• Parties: THE STATE OF MISSOURI, to the use of SAMUEL P. MOORE et al., Plaintiff in Error, v. GEO. T. WHITE, Adm'r of the estate of G. W. SONE, Deceased, Defendant in Error.
• Court: Missouri Supreme Court

61 Mo. 441

THE STATE OF MISSOURI, to the use of SAMUEL P. MOORE et al., Plaintiff in Error,

v.GEO. T. WHITE, Adm'r of the estate of G. W. SONE, Deceased, Defendant in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Cole Circuit Court.

E. L. Edwards & Son, for Plaintiffs in Error.

G. T. White, pro se.

I. The petition in this case discloses the fact that the property was the homestead, and that the widow was interested in it; hence she was bound to pay the taxes. (Whalley vs. Whalley, 50 Mo., 577; 57 Mo., 135; Elliott vs. Lemon, Cent. Law Jour., vol. 2, p. 227; Wilcox vs. Smith, 26 Barb., 326; 45 Barb., 188-9.)

II. If, as charged, it was defendant's duty to pay the taxes, it was the defendant's debt, and plaintiff could not, by paying them, make defendant her debtor. (2 Greenl. Ev., §§ 107, 113; Pars. Cont., ed. 1864, 499, 470.)

III. The petition does not sufficiently set forth compliance by the collector with statutory requirements. (Brookfield vs. Carter, 55 Mo., 310.)

NAPTON, Judge, delivered the opinion of the court.

The first question in this case is raised by a motion to dismiss. A petition was filed and a demurrer, and the court sustained the demurrer, and entered judgment thereon for defendant. A writ of error was sued out to this judgment. The objections are, that there was no motion for new trial, and no motion in arrest, in short, that there was no bill of exceptions in the case.

If error appears upon a record, a writ of error is the proper mode of correcting it. Petition and demurrer and judgment on the same are parts of the record, and there is no need of a bill of exceptions to make them records. And if error is committed, apparent on the face of the record, no bill of exceptions is necessary. This has always been the law, and we are not aware of any decision of this court to the contrary. The motion to dismiss must therefore be overruled.

The remaining question presented by the record is, whether the demurrer was properly sustained.

The petition in the case avers that one, G. W. Sone, died December 1st, 1869, leaving as his widow, the plaintiff, now Mrs. Moore; that defendant White was duly appointed administrator; that White gave the requisite bond, etc., and, for breach of said bond assigns; that said White failed and refused to pay the taxes on the real estate of said Sone for the years 1871 and 1872; that it was the duty of White to pay these taxes, having ample funds of the estate in his hands to do so, but that he suffered the lands to be returned as delinquent, and Mrs. Moore, the plaintiff, having an interest in said estate, to prevent a sale for non-payment of taxes, paid said taxes, and a judgment is asked for the amount so paid.

The demurrer to the petition was based on these grounds: 1. that plaintiffs seek to make...