State v. Coleman

• Decision Date: 13 August 1925
• Docket Number: No. 3703.,3703.
• Parties: STATE ex rel. KEARSEY, Collector of Revenue, v. COLEMAN et al.
• Court: Missouri Court of Appeals

274 S.W. 1108

STATE ex rel. KEARSEY, Collector of Revenue, v. COLEMAN et al.

No. 3703.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the State, on the relation of A. P. Kearsey, Collector of Revenue of Pemiscot County, against Peter A. Coleman and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Shelley I. Stiles and McKay & Peal, all of Caruthersville, for appellants.

N. C. Hawkins, of Caruthersville, for respondent.

COX, P. J.

Action by the collector of revenue of Pemiscot county, Mo., to collect for the use of drainage district No. 6 in said county, the assessments of 1915, 1916, 1917, and 1920 against land owned by defendants. Judgment for plaintiff, and defendants appealed.

It will not be necessary to review the testimony at length. Such as we may wish to refer to will be set out as we proceed.

It is suggested that this case should be certified to the Supreme Court on the ground that a construction of revenue laws is involved. The Supreme Court has held adversely to that contention. State ex rel. Broughton v. Oliver, 273 Mo. 537, 201 S. W. 868.

Appellants sought to show, as a defense, that the drainage district was not legally organized, and that the original assessment was void. These questions cannot be determined in a suit by the district to collect taxes. State ex rel. Brown v. Wilson, 216 Mo. 215, 273-275, 115 S. W. 549; State ex rel. Jones v. Young, 255 Mo. 627, 636, 637. 164 S. W. 579.

The taxes sued for are for the years 1915, 1916, 1917, and 1920. This suit was begun December 29, 1921, and it is contended that the taxes for all these years are barred by the statute of limitations because the statute (section 4496, Stat. 1919) requires the collector to bring suit within six months after the taxes become delinquent. This court has held that the provision of that section referred to is not a statute of limitations, and suits may be brought after the expiration of the six months' period. St. Francis Levee District v. Arcadia Timber Co. (Mo. App.) 253 S. W. 1078. We adhere to the holding in that case.

It is also contended that the taxes for 1915 are barred under the five-year statute of limitation. It is said that these taxes became delinquent January 1, 1916, and this suit was begun more than five years thereafter, and hence the right to recover for taxes for that year was barred by limitation. The petition in this case showed on its face that the amount sued for included taxes for 1915, and the question of the taxes for that year being barred should have been raised by special demurrer or motion to strike out that part of the petition. Denning v. Meckfessel, 303 Mo. 525, 534, 261 S. W. 55; American Radiator Co. v. Conner Plumbing & Heating Co., 277 Mo. 548, 552, 211 S. W. 56. In any event, the defense of the statute of limitations was not pleaded, and for that reason is not available in this action. American Radiator Co. v. Conner Plumbing & Heating Co., 277 Mo. 548, 552, 211 S. W. 56; Johnston v. Ragan, 265 Mo. 420, 447, 178 S. W. 159.

It is next contended that plaintiff failed to make a case, because the court erroneously admitted in evidence the tax bill, made out by the collector, and the drainage tax book. The objection to the tax book was that it was not properly identified, and failed to set out some of the things required by the...