State v. Keithley

• Decision Date: 03 June 1918
• Docket Number: No. 19260.,19260.
• Citation: 204 S.W. 24
• Parties: STATE ex rel. and to Use of KANSTEINER, Collector of Revenue, v. KEITHLEY et al.
• Court: Missouri Supreme Court

204 S.W. 24

STATE ex rel. and to Use of KANSTEINER, Collector of Revenue, v. KEITHLEY et al.

No. 19260.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Action by the State, on the Relation and to the Use of H. W. Kansteiner, Collector of the Revenue within and for the County of St. Charles, State of Missouri, against Sarah Ann Keithley and John M. Keithley, Junior. Judgment for defendants and plaintiff appeals. Reversed and remanded.

Plaintiff sued on a tax bill to recover $722.22, the amount of benefits assessed against the lands of defendants by reason of the carrying out of the plans for the drainage of district No. 3. The court sustained a demurrer to the petition, and the plaintiff, electing to stand on his petition, has appealed.

The county court on August 24, 1911, confirmed the report of the commissioners assessing the damages and benefits to landowners by reason of said improvement. On October 12, 1911, the county court ordered that said assessments he paid in one installment, and that they bear interest at 6 per cent. per annum. The county clerk then made up the .drainage tax book as required by law, and delivered it to the county collector. The taxes were not paid, and this suit was filed on May 29, 1914. The petition alleged those facts. The defendant's demurrer to that petition was based on the ground that the petition showed that the taxes became delinquent on December 31, 1911, and that the statute requires that suit shall be commenced within six months after the taxes became delinquent.

There is no bill of exceptions in the case, and the cause comes here on the record proper; yet respondents in their brief have attempted to inject into this case a new question not in the record proper, and is found only in the briefs filed in this court. That question sought to be put into this case arises on the following facts, as near as we can gather them:

Just before this case was decided by the trial court that court had decided in another similar case that suit for such taxes was barred by section 5599 of our Revised Statutes if not brought within six months after the taxes became delinquent. After that ruling in the prior case counsel on both sides in this case filed briefs in the trial court. Plaintiff's brief there filed contained this:

"Plaintiff concedes that, if this action is not brought within six months after these taxes became delinquent, then this action is barred by limitation. Therefore the only question to be decided in passing on this demurrer is: When did said taxes become delinquent?"

Defendants' brief there filed contained this:

"Your honor having recently ruled that the action arising in such cases is bar"ed if the suit is not brought within six months after the assessment becomes delinquent, the counsel for the plaintiff and defendants have agreed that this is the law, and that the sole question for determination is whether or not this suit was brought more than six months after the assessment .sued for became delinquent."

Respondents in their brief here in effect...