State v. Lounsberry

• Decision Date: 26 November 1894
• Citation: 125 Mo. 157,28 S.W. 448
• Parties: STATE ex rel. GIBSON, Collector, v. LOUNSBERRY et al.
• Court: Missouri Supreme Court

28 S.W. 448

125 Mo. 157

STATE ex rel. GIBSON, Collector, v. LOUNSBERRY et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

TAXATION — ASSESSMENTS — PROCEDURE — OBJECTIONS.

1. Rev. St. 1889, § 7571, requires that the assessor of land return to the county court "a fair copy" of the assessor's book, and that the clerk of the court shall make out a copy of the "assessment book," and forward the same to the state auditor. Section 7553 et seq., speaking of the "assessor's books," provides the manner in which they shall be made by the assessor. Held, that the assessor was not required to return to the county court a "copy" of his original assessment book, but merely his original book in a fair and legible condition.

2. The fact that the county clerk extends the taxes on the copy of the assessment book made out by him for the collector, instead of on the original book, does not invalidate the tax; as such requirement, being merely for the purpose of securing order, is directory, and therefore the omission is cured by Rev. St. §§ 7708, 7563, providing that informalities shall not vitiate an assessment.

3. In an action to enforce a tax lien, error in admitting in evidence the tax bill, defective in that it describes the land as the "W²," etc., will not be reviewed where the attention of the court was not specifically called to such defect, the objection being that it was "not sufficient on its face" to show tax charge for the tax items charged in the petition against the land.

Appeal from circuit court, Newton county, M. G. McGregor, Special Judge.

Proceedings by the state, on the relation of W. J. Gibson, collector, against Charles Lounsberry and others, to enforce tax liens. There was a judgment for relator, and defendant Lounsberry appeals. Affirmed.

Geo. Hubbert, for appellant. O. L. Cravens, for respondent.

BLACK, J.

This was a suit by the collector of Newton county to enforce the state's lien for taxes levied for the year 1890, upon land described in the petition as "the west half of the east fractional half of section 5,' etc. Lounsberry and four other persons were made defendants. He filed answer. The other persons made default. On the trial the plaintiff offered in evidence the tax bill filed with the petition, to which the defendant objected; but the court overruled the objection, and the defendant excepted. On this evidence the plaintiff rested his case. The defendant then introduced the whole of the records and proceedings relating to the assessment, levy, and extension of the taxes for 1890. According to the bill of exceptions, these records and proceedings show the following facts: That the assessor made out an original assessment book, in which lands were listed as of the 1st June, 1889; that the land assessment book was returned by the assessor to the county court, but he did not at any time make out or return a copy thereof; that the county clerk made a copy of the original assessment book, with the taxes extended therein, and delivered the same to the collector as and for the tax book of 1890; and that no taxes have ever been extended for 1890 opposite or against the land described in the petition on the original assessment book, or on a copy thereof, other than a copy made out by the county clerk for the assessor. The tax proceedings are conceded to have been regular in all other respects.

1. The appellant insists that the assessor should have made out and returned to the county court, not the original assessment book, but a copy thereof, to be used before the board of equalization, and upon which to extend the taxes. In other words, the claim is that there must be three books; namely, the original assessment book, a verified copy thereof, to be made out and certified by the assessor to the county court, and then a copy to be made by the county clerk, and by him delivered to the collector. Section 7571, Rev. St. 1889, provides that the assessor shall make out and return to the county court "a fair copy of the assessor's book, verified by affidavit annexed thereto," etc. If it be conceded the assessor should prepare an original assessment book, and then make out and return a verified copy thereof, and that the copy should be laid before the board of equalization, and the taxes extended thereon, still it does not follow that the plaintiff must fail in this suit. In the recent case of State v. Bank of Neosho (Mo. Sup.) 25 S. W. 372, the assessor failed to make out and return a copy of his assessment book of personal property, but returned only the original, and the taxes were extended on the original assessment book. It was held the assessor acquired jurisdiction when his assessment book was made out, and the omission to return a copy upon which to extend the taxes was cured by certain sections of the statute. The same principle must apply to an assessment of real estate. But, after a careful consideration of the statutes, we are satisfied the words "a fair copy of the assessor's book, verified," etc., mean the assessor's book, and not a copy thereof. They mean a fair, legible assessment book. Long ago the assessor was required to make out and return to the county court "a fair copy of the tax book, verified," etc. Rev. St. 1855, p. 1334, § 49. As the law then stood, the assessor was required to make a list of all the taxable property, to be called the "tax book"; and sections 50 and 51 show clearly enough that the "fair copy," mentioned in section 49, was the tax book itself, and not a copy, for section 50 speaks of the tax book as the book mentioned in section 49. The words "fair copy" seem to have been used in the same sense in all subsequent statutes. That they are so used in the present statutes will clearly appear by an examination of the various sections of the present revenue law. By section 7551 of the Revised Statutes of 1889, the assessor is required to make out a list of all taxable property, to be called the "assessor's book." Section 7553 speaks of "assessors' books," and says they...