State ex rel. Stuart v. Maloney

• Decision Date: 23 January 1893
• Citation: 20 S.W. 1064,113 Mo. 367
• Parties: The State ex rel. Stuart, Collector, v. Maloney et al., Appellants
• Court: Missouri Supreme Court

20 S.W. 1064

113 Mo. 367

The State ex rel. Stuart, Collector, v. Maloney et al., Appellants

Supreme Court of Missouri, First Division

January 23, 1893

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

Affirmed.

J. P Butler for appellants.

(1) The court erred in excluding proper and competent evidence for the defendants. It was essential to plaintiff's recovery in this action that it appear by order of the county court entered of record that it had examined and corrected the delinquent list returned by the collector, and that such list so examined and corrected had been certified and filed in the office of the county clerk. Revised Statutes, 1879, sec 6824. Unless these things were done, no legal delinquent list of back-tax book could be made. Nor could any legal back-tax bill be made therefrom unless these essential requirements were first complied with. State ex rel. v. Scott, 96 Mo. 72. The defendant offered to prove from the records as they existed at the time that none of these things had been done. They also offered to prove by the county clerk that these things had not been done, and that the only attempt to make such a record had been made a short time before the trial by adding to each of the records of the several settlements interlineations. (2) The court erred in rendering judgment for the plaintiff in that there was no evidence before the court to prove that Sullivan county had adopted township organization, whereby the treasurer could become or was ex-officio collector and entitled to recover for the taxes sued for. Judicial notice is not taken of the fact that a county has adopted township organization. State v Hayes, 78 Mo. 600; State v. Cleveland, 80 Mo. 108; Spenlock v. Dougherty, 81 Mo. 171; City v. Railroad, 79 Mo. 98. There being no proof there is no presumption of right to recover.

J. W. Childers for respondent.

(1) Parol evidence is inadmissible to disprove the solemn records of a court of record. 1 Greenleaf on Evidence [Redfield's Ed.] sec. 86; Maupin v. Franklin Co., 67 Mo. 327; Freeman v. Thompson, 53 Mo. 183; State ex rel v. Prinner, 61 Mo. 166; County v. Wood, 84 Mo. 489. (2) The objection is not well taken that there was no evidence before the court showing that Sullivan county had adopted the township organization whereby the treasurer could become the ex-officio collector. The tax bill made out a prima facie case and besides the answer admits that he is treasurer and ex-officio collector.

Barclay, J. Black, C. J., Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

The relator brought this action as treasurer of Sullivan county, and as such collector of the revenue, to recover delinquent taxes duly charged upon lands of defendants for the years 1884, 1885 and 1886.

The substantial issues will be sufficiently developed without a full recital of the pleadings.

At the trial plaintiff read in evidence, without objection, a back-tax bill, certified in proper form, showing the tax indebtedness alleged in the petition for the years mentioned. Plaintiff then rested.

What then occurred is thus stated in the bill of exceptions: "The defendants to sustain the issues on their part offered and read in evidence the record of the county court, showing settlement made with the treasurer and ex-officio collector of said county for the years 1884, 1885 and 1886.

"The defendants then produced as a witness, N. J. Winters, deputy clerk of the county court, during the years 1884, 1885 and 1886, and offered to prove by him 'that at the respective times when said settlements were made with the collector no order of the court was made or certificate granted showing that the delinquent or back-tax lists had been examined or corrected by the county court as required by law.'

"The defendants further offered to show by said witness that, after the commencement of this suit and a short time before the trial hereof, without authority or legal direction from the county court, the following was added to each of said respective settlements, viz.: 'And the delinquent list returned is now examined and corrected, and the list so corrected is ordered certified and filed in the office of the clerk of this court.'

"To the introduction of this evidence the plaintiff objected for the reason that the record could not be attacked or contested in a proceeding of this kind in that way. The objection was sustained by the court."

Defendants duly excepted to the ruling and offered no further testimony. The court then found for the plaintiff for the amount shown by the tax bill, and rendered judgment accordingly.

Defendants moved for a new trial on the ground of the exclusion of the evidence above indicated. Their motion was overruled. In due course they prosecuted the present appeal.

I. The duly certified tax bill was prima facie evidence that the amount claimed was just and correct. Revised Statutes, 1889, sec. 7682, same as sec. 6837, of 1879; State ex rel v. Rau, 93 Mo. (1887), 126. The judgment was therefore sufficiently supported by evidence.

II. The criticism of the proceedings at the trial is directed mainly against the court's ruling upon the testimony already indicated.

The offer, which the court rejected, contemplated certain oral statements by the deputy county clerk, touching the contents of the records in his custody.

Generally speaking, the proceedings of a court possessing one are provable only by its record, or by an authorized copy properly presented in evidence. But this general rule carries with it the corollary that verbal testimony may sometimes be requisite...