State ex rel. Steel v. Phillips
| Decision Date | 02 February 1897 |
| Citation | 38 S.W. 931,137 Mo. 259 |
| Parties | The State ex rel. Steel, Collector, v. Phillips, Appellant |
| Court | Missouri Supreme Court |
Appeal from New Madrid Circuit Court. -- Hon. Dorsey W. Shackleford Special Judge.
Affirmed.
R. B Oliver for appellant.
(1) The defendant pleaded, and sought to show by testimony, that he had discharged his duty by calling upon the collector and paying all the taxes that were assessed and charged against him for the years 1888, 1889, and 1890. The circuit court committed reversible error in refusing to allow him to plead and show this as a matter of defense. Harness v Cravens, 126 Mo. 233. (2) It was clearly shown by county clerk Mitchell that the delinquent lists of back taxes for the years 1888 and 1889 were not ordered filed by the county court. Nor did they have any certificates attached to said delinquent lists reciting that the court had examined the same and found them correct. Nothing of that kind appears on the delinquent lists, and this omission is fatal to the plaintiff's cause of action. State ex rel. v. Hurt, 113 Mo. 90; State ex rel. v. Hutchinson, 116 Mo. 399. (3) The prima facie case made by the state in offering its tax bill is overcome by the testimony showing that the county court had failed to certify the corrected delinquent list to the county clerk, and the court erred in not giving the second instruction prayed for. State ex rel. v. Hutchinson, 116 Mo. 399. (4) The testimony shows that in the year 1890 the delinquent lists were examined by the court and by it ordered to be certified to and filed by the county clerk of said county, as the law directs, but it was affirmatively shown that he did not make any back tax book for that year within the time fixed by law, and that in making the back tax bill for the collection of which this suit was brought, he did not follow a true copy of said bill from the delinquent list, but changed it to suit what he supposed was the ownership of the property. This, we contend, he could not do. This was the duty of the assessor, not the county clerk's nor the collector's. (5) As the "transcript" does not show that the defensive matter set up in the second and third counts of defendant's answer was denied, we now ask that the case may be reversed for that reason.
Robert Rutledge for respondent.
(1) The pleadings, record, and evidence in this case do not sustain the appellant in his effort to get this case under what he considers the holding of this court in the case of Harness v. Cravens, 126 Mo. 233. No objection was made to his answer, whatever; no part of it was stricken out and he "was allowed to show every matter set up in his answer as a defense." The collector had nothing to do with charging defendant with taxes. It was his duty to collect the taxes and he said he called upon the defendant. A careful reading of defendant's answer will disclose the fact that it is not the lien he seeks to be discharged of but the debt, and if his answer was sustained by the evidence it would avail him nothing. Harness v. Cravens, 126 Mo. 233. (2) Appellant's contention that "the delinquent lists of back taxes for the years 1888 and 1889 were not properly certified and filed" is not supported by a careful reading of the evidence, which clearly shows that all necessary steps were properly taken. State ex rel. v. Scott, 96 Mo. 72; State ex rel. v. Hurt, 113 Mo. 90; State ex rel. v. Lounsberry, 125 Mo. 157; State ex rel. v. Phillips, 102 Mo. 664; State ex rel. v. Hoyt, 123 Mo. 348. (3) Defendant did not succeed in impeaching the tax bill sued on, and the evidence on his behalf did not overcome the prima facie case made out thereby, and it was not necessary for plaintiff to offer further testimony and the court did not err in refusing defendant's second instruction and giving judgment for plaintiff. The defendant did not and could not show that the tax bill sued on was not the legitimate child of the defined proper tax procedure, and it did not devolve upon plaintiff to introduce further evidence. State ex rel. v. Hutchinson, 116 Mo. 399; State ex rel. v. Scott, 96 Mo. 72; State ex rel. v. Lounsberry, 125 Mo. 157; State ex rel. v. Phillips, 102 Mo. 664; State ex rel. v. Hoyt, 123 Mo. 348; State ex rel. v. Bank, 120 Mo. 161. (4) The court tried the case upon the petition and answer; no motion to strike out any part of defendant's answer was made and no replication was necessary. The court heard all the evidence and inquired fully into every matter of defense set up in defendant's answer, and upon a full and complete hearing rendered judgment for the taxes. This judgment is for the right party, and in both law and equity, ought not to be disturbed. No replication to defendant's answer was filed and none was necessary. Nelson v. Wallace, 48 Mo.App. 193.
Action to recover back taxes for the years 1888, 1889, and 1890.
The defendant in his answer set up three defenses: The first count is a general denial. The second count is as follows:
"And for further answer herein defendant says that he is not indebted to the plaintiff in any sum whatever, for the reason that he called upon the collector for the several years he is supposed to be charged with the delinquencies and paid all taxes that were charged against him, and took receipts therefor, and now pleads these facts as well as said payments in bar of any further tax, and again prays for judgment."
The third count charges that there never was any legal assessment of the property set out in plaintiff's petition; that no legal tax was ever extended as required by law; and that there never was any settlement between the collector of the county and the county court at the time required by law, and that there never had been any settlement between the collector of the county and the county court showing the amount of the state revenue...
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