State v. Merriam

• Decision Date: 12 February 1901
• Citation: 60 S.W. 1112,159 Mo. 655
• Parties: STATE ex rel. MALIN, Collector, v. MERRIAM et al.
• Court: Missouri Supreme Court

60 S.W. 1112

159 Mo. 655

STATE ex rel. MALIN, Collector, v. MERRIAM et al.

Supreme Court of Missouri, Division No. 1.

February 12, 1901.

APPEAL AND ERROR — AGREED STATEMENT OF FACTS — BILL OF EXCEPTIONS.

1. Where, in an action to enforce the collection of delinquent taxes, the cause was submitted on an agreed statement of facts, and there was no bill of exceptions or motion for new trial filed, or appeal taken, such statement of facts is not a part of the record, and cannot be considered by the supreme court on writ of error.

2. Where the appeal record consists only of the petition, summons, subsequent pleadings, verdict, and judgment, and there is no error therein, the judgment should be affirmed.

Error to circuit court, Ozark county; W. N. Evans, Judge.

Action by the state of Missouri, on the relation of John A. Malin, collector of the revenue of Ozark county, against Charles Merriam and others. From a judgment for defendants, plaintiff brings error. Affirmed.

A. H. Livingston, for plaintiff in error. Wallace Pratt and W. J. Orr, for defendants in error.

MARSHALL, J.

This is a suit to collect back taxes alleged to have been levied and assessed upon 36 different tracts of land in various townships and ranges in Ozark county, of which the defendants are alleged to be the owners, which taxes are averred to be $153.64 "for interest and sinking fund tax for the year 1895," and $156.57 for the same purpose for the year 1896; and judgment is prayed for this amount, with interest and costs. The petition alleges that the lands were returned delinquent by the collector, and that the county clerk made out and delivered to the collector a back-tax book, as provided by law, and that the lands described in the back-tax book remain unredeemed, and the taxes unpaid. The answer is a general denial, with an admission that the defendants own the land. The transcript in the case before this court consists of the petition; a paper consisting of eight pages, and purporting to be a certificate that the back taxes on the property remain delinquent; the answer; a stipulation signed by the attorneys and filed in the cause, as follows: "It is hereby stipulated and agreed that the taxes on which this suit is based were levied for the purpose of creating a sinking fund for the payment of certain bonded indebtedness of Ozark county, Mo., issued in August, 1889, and an interest fund for the payment of the interest thereon, and said taxes constitute no part of the taxes levied for ordinary county expenses; that the county court of Ozark county did not prior to the levy of said taxes for either year, through the county attorney or otherwise, ask for or receive from the circuit judge of the Twentieth judicial circuit an order authorizing the levy of said taxes or any part thereof;" and the judgment, as follows: "Now, on this day this cause coming on to be heard, the parties appear and announce ready for trial, and all and singular the matters in issue being submitted to and by the court seen; and the court, after hearing the evidence, finds that the taxes for which this suit is brought are illegal and void, and that plaintiff is not entitled to recover herein. It is therefore considered and adjudged that the lien for said taxes be set aside, and for naught held and esteemed [description of land omitted]. It is further considered and adjudged that the plaintiff take nothing by its suit, and that defendants recover their costs." There was no bill of exceptions or motion for new trial filed, and no appeal taken, but the matter remained in this shape from the date of the judgment on August 12, 1897, until May 3, 1898, when this writ of error was sued out.

It is contended by plaintiff that the stipulation herein set out constitutes an agreed case, or agreed statement of the case, and occupies the same footing as, and stands in lieu of, a special verdict; that it stands precisely as if a jury had found a verdict in that form, and that when filed it became a part of the record proper, and hence no bill of exceptions was necessary to make it a part of the record; and that, as it is a part of the record proper, no motion for new trial was necessary, but that it is the duty of this court to examine the case so made, and if error is apparent on the face of the record proper, so constituted, to reverse the judgment below, and enter such judgment as the trial court ought to have entered. It is manifest that this is not an agreed case, within the meaning of section 793, Rev. St. 1899, which authorizes parties to a question of difference,...