State v. Kersey

• Decision Date: 22 April 1926
• Docket Number: No. 3947.,3947.
• Citation: 286 S.W. 832
• Parties: STATE ex rel. KERSEY, Collector of Revenue, v. SIMS et al.
• Court: Missouri Court of Appeals

286 S.W. 832

STATE ex rel. KERSEY, Collector of Revenue, v. SIMS et al.

No. 3947.

Springfield Court of Appeals. Missouri.

April 22, 1926.

On Motion for Rehearing, September 4, 1926.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the State, on the relation of A. Parker Kersey, Collector of Revenue of Pemiscot County, to the use of Drainage District No. 3 of such county, against Mary K. Sims and others to recover drainage district assessments. From a judgment for the relator, defendants appeal. Transferred from the Supreme Court (309 Mo. 18, 274 S. W. 359). Modified and affirmed, with directions.

C. G. Shepard, of Caruthersville, for appellants.

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

BAILEY, J.

This is a suit brought by the state of Missouri to the use of the collector of revenue of Pemiscot county and to the use of drainage district No. 3, of that county, for the collection of certain drainage district taxes assessed against lands of defendants for the years 1915 to 1919, inclusive. The cause was tried in November, 1922, before the court without a jury, and resulted in a judgment for plaintiff in the sum of $935.29. Defendant was granted an appeal to the Supreme Court, which court, on a jurisdictional question, transferred the cause to this court.

Appellant's first assignment of error attacks the sufficiency of plaintiff's petition to state a cause of action (a) because it does not state facts which comply with the statute requiring all assessments to be made and enforced against each 40-acre tract; (b) and because it attempts to enforce assessments made under proceedings instituted in 1918 through a petition purporting to enforce assessments made under a proceeding instituted in 1903.

The petition alleges, after formal averments, that drainage district No. 3 was duly incorporated by judgment of the county court of Pemiscot county in 1904, under the provisions of chapter 41, Revised Statute of Missouri 1909:

"That defendants herein are the owners of the lands hereinafter described, and that the said lands are now and were at the time of the incorporation of said district situate therein, and the same were at the time duly and lawfully in 40-acre tracts assessed with benefits and betterments, and taxed to pay a taxation yearly thereafter to defray the pro rata of the costs of the project and scheme of drainage provided by said drainage district and in proportion to the said benefits and betterments thereon fixed and adjudged at the time, which amounts thereafter became and are now a lien against said lands according to the law."

The petition then gives a "combined" description of the specific land in 5 separate tracts containing, respectively, 160 acres, 129 acres, 120 acres, 160 acres, and 113 acres, and also sets out the amount of tax, interest, and penalties and costs against each of the 5 tracts for the years 1915 to 1919 inclusive, all of which taxes are declared to be a lien against the lands, due and unpaid; then follows an allegation that the tax bills are herewith filed and made a part of this petition. It is further alleged: That N. C. Hawkins was duly employed as attorney and is entitled to a 10 per cent. attorney's fee. That "each and every of the steps necessary to make the tax herein sued for a lien upon the lands above described and collected according to law have been fully complied with, and that plaintiff is entitled to judgment for the same. Wherefore, plaintiff prays judgment for the sum of $554.08 as taxes, $148.84, interest and penalties, and $15.75 as costs," etc.

Defendant first filed a demurrer to the petition, which was overruled; thereupon an answer was filed denying the validity of the assessments, denying that the lands of defendants were incorporated in the drainage district No. 3, and declaring the pretended assessments against defendants wholly void.

(A) We shall first consider the question as to whether plaintiff's petition is defective because of failure to comply with the statute requiring all assessments to be enforced against each 40-acre tract. While the petition does not cite correctly the law under which this particular drainage district was incorporated, it is uncontroverted that it was organized under the provisions of article 4, c. 122, R. S. Mo. 1899. Under the provisions of section 8284 of that article, it is provided, among other things:

That the viewers "shall also make and return a schedule of all lots and lands and public or corporate roads or railroads that will be benefited or damaged by the improvement, and the damage or benefit to each tract of forty acres or less, and make separate estimates of the cost of location and construction and apportion the same to each in proportion to the benefits or damages which will result to each."

The petition, as before set out, alleges that the lands involved herein "were at the time duly and lawfully in 40-acre tracts assessed with benefits and betterments and taxed to pay a taxation yearly thereafter," etc. (Italics ours.) It further states that "the specific lands with a combined description thereof, and the amount of tax due therefrom for the year the same is due, and the interest, etc., are as follows." It then sets out the land in 5 large tracts with the combined tax thereon, as heretofore indicated. No motion to make more definite and certain was filed. The point raised by the demurrer as to the 40-acre proposition would have been vulnerable to attack by motion. The petition is not as definite and certain as might have been required, but, in general terms, it alleged a strict compliance with the statute in regard to the separate assessment of each 40-acre tract. It is a well-established rule that,

"Where a petition does not wholly fail to state a cause of action, but states, one defectively, objection to it, though good on a motion to make more definite or even on demurrer, comes too late after verdict." Knox County v. Brown, 103 Mo. 223, 15 S. W. 382; Salmon Falls Bank v. Leyser, 116 Mo. 51, 22 S. W. 504.

It is also firmly imbedded in our law that upon the overruling of a demurrer to a petition, if the defendant fails to stand thereon, he waives all objections except as to failure of the petition to state a cause of action and want of jurisdiction of the court. Pickering v. Telegraph Co., 47 Mo. 457; Roberts v. Neale, 134 Mo. App. 612, 114 S. W. 1120; White v. R. Co., 202 Mo. 539, 101 S. W. 14; Hanson v. Neal, 215 Mo. 256, 114 S. W. 1073.

In addition to the general allegation referred to, there was parol evidence, given without objection, that the benefits assessed were set opposite each 40-acre tract. We are constrained, therefore, to hold against defendants on this assignment.

(B) The contention that plaintiff's petition attempts to enforce assessments made under proceedings instituted in 1918 when the district was reorganized, while purporting to state a cause of action based on proceedings instituted in 1903 when the original district was formed, likewise cannot be upheld.

It may be conceded the petition was defective in not setting out specifically all the facts, and in failing to indicate that a part of the tax for which recovery is sought was assessed under the reorganized district. But it is "a well-settled rule of practice that the omissions or other defects of the petition may be cured by the subsequent pleading of the adverse party." Grace v. Nesbitt, 109 Mo. loc. cit. 15, 18 S. W. 1119; Allison v. Cemetery Co., 283 Mo. 424, 223 S. W. loc. cit. 44; State ex inf. v. Groner (Mo. Sup.) 252 S. W. loc. cit. 707; Cullen v. Atchison Co. (Mo. Sup.) 268 S. W. loc. cit. 95, 96; 31 Cyc. 714; 21 R. C. L. art. 158, p. 619.

The answer in this case, among other things, alleged:

That "the present taxes which plaintiff is endeavoring to enforce in this suit are levied as a tax for enlarging and increasing drainage ditch No. 3, and only attempt to assess the land for the enlargement that was legally embraced in and subject to benefit assessment under the first organization; that defendant's land was not legally assessed under the first organization, and was not a part of said organization, and was not subject to benefit tax by said original organization, and it is therefore not subject to tax under the present organization which was attempted to be organized for the purpose of enlarging and deepening said drainage ditch No. 3."

We believe the answer fully supplied any defect in the petition on this point. Moreover, during the trial, defendant offered evidence tending to prove the foregoing allegation as to the levy of tax against the land in the reorganized district. Thereafter, plaintiff in rebuttal offered in evidence, over defendant's objection, all the records of the county court showing the petition, orders, bevies, etc., relating to the reorganization of district No. 3, commenced April 6, 1918. Finally, the court permitted the petition to be amended by interlineation to comport with the proof adduced. This whole issue was fully presented to the court, and no harm came to defendants by reason of the defect, if any, in plaintiff's petition. Certainly, after judgment, this objection cannot now be successfully urged.

The evidence in this case, as shown by the records of the county court introduced in evidence, indicates that defendant Mary K. Sims was not a petitioner in the original proceedings to organize the district. Defendant's lands were within the proposed district. Appellant contends that she was never served with notice of the proceedings and had no notice, either by publication or otherwise; that for failure to give defendant landowner, at the time of the organization of the district, such notice as the law authorizing the formation of such districts required, the court acquired no jurisdiction over defendants and their lands, citing Levee District v. Hillside Security Co., 268 Mo. 654, 187 S. W. 852.

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