State v. Renshaw

• Decision Date: 19 February 1902
• Citation: 66 S.W. 953,166 Mo. 682
• Parties: STATE ex rel. DOWELL, County Collector, v. RENSHAW.
• Court: Missouri Supreme Court

66 S.W. 953

166 Mo. 682

STATE ex rel. DOWELL, County Collector, v. RENSHAW.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

PERSONAL TAXES — WHEN DELINQUENT — RESIDENCE — SITUS — PLEADING — OBJECTIONS WAIVED AND CURED.

1. A finding that defendant was on June 1, 1895, a resident of A. county, for purpose of taxation, is sustained by evidence, — it appearing that he was in A., boarding at a hotel from March 31 to May 22, and from November 15 to December 31, 1894, and that year told the assessor of C. county that his home was in A.; that in 1895 he lived at said hotel at intervals from May to August 23d, and again told the assessor of C. county that he was still living in A.; that he rented a house in Virginia for the first time September 1, 1895, became a registered voter there for the first time March 10, 1896, and told the Virginia assessor in 1895 that he was assessed in Missouri, — though he testified that he visited in Virginia in 1892 and 1893, and in 1894 determined to take up his residence there permanently, and lived there in 1894 and 1895.

2. The situs on June 1, 1895, for purpose of taxation, of notes owned by defendant secured by mortgage on lands in A. county, is established by evidence that he carried them with him wherever he went, sending them to such county or depositing them there when interest or principal was to be paid, and that on such date he was in such county and there resided.

3. Objection that petition to recover personal property tax did not allege defendant was a resident of the county is waived, there having been no demurrer, and the motion in arrest of judgment, while containing the ground that the petition does not state facts sufficient to constitute a cause of action, having qualified the point by the words, "because the action on the face of the petition is prematurely brought."

4. Allegation, in petition to recover personal taxes, that the collector called on defendant at his place of business in A. county and served him with an assessment blank, is, after verdict, in absence of special demurrer, a good allegation of defendant's residence in the county.

5. Rev. St. 1889, § 7605, making the personal tax delinquent after January 1st, it may be then sued on, it not being necessary that the delinquent lists required by section 7624 be first returned to the county court, as required by section 7627, and then redelivered by the county court to the collector, as required by section 7653; these provisions being only for effecting settlements with the collector.

Appeal from circuit court, Callaway county; John A. Hockaday, Judge.

Action by the state, on the relation of J. W. Dowell, collector of Audrain county, against J. C. Renshaw. Judgment for plaintiff. Defendant appeals. Affirmed.

D. P. Bailey and Geo. Robertson, for appellant. H. D. Rogers, for respondent.

MARSHALL, J.

This is an action to recover back taxes on personal property for the year 1896. The defense is that the defendant was not on June 1, 1895, a resident of Audrain county, and never had been such resident, but that he was at that time a resident of Albemarle county, Va. The court instructed the jury that the plaintiff could not recover if the defendant was a resident of Virginia at that time. The jury, however, found for the plaintiff, and the defendant appealed. The facts and the law will be discussed together for the sake of simplicity and for a better understanding of the case.

1. The defendant contends that there is no substantial evidence that he ever was a resident of Audrain county, and therefore there is no fact to support the verdict, which is claimed to be the result of passion and prejudice. The defendant's evidence tended to show that for about 25 years prior to 1886 he lived in Callaway county; that about 1886 he moved to St. Louis, where he remained until 1892, and while he lived in St. Louis he voted once or twice; that he had a married daughter, who lived in Howardville, Albemarle county, Va., and that in 1892 he and his wife visited her, and stayed with her as her guests during 1892 and 1893, but that during 1894 he went to his daughter's said home to live permanently, and lived there during the year 1894 and during the year 1895, until September 1, 1895, when he moved to Charlottesville, Albemarle county, Va., rented a house, and remained there until 1898, when he returned to his daughter's home in Howardville, where he remained a short time, and then moved again to Charlottesville, where he has resided ever since; that he first registered as voter in Virginia on the 10th of March, 1896, and attended the state Democratic convention in 1896, as a delegate from Charlottesville; that he was assessed for taxes in Virginia for the year 1895; that in 1896 he made a return of personal property for taxes in Charlottesville, Va., and was listed or assessed in 1897, but made no return and was not assessed for 1898. The evidence for the plaintiff showed that on the 31st of March, 1894, the defendant came to Mexico, Audrain county, and boarded at the Ringo Hotel from that date until December 31, 1894, and that he returned on May 2, 1895, and remained until the latter part of July, 1895; that in 1894 he was in Callaway county, and the assessor of that county tried to assess him, but the defendant refused to be assessed in Callaway county, and said, "My home is in Mexico;" that in 1896, when the assessor in Virginia assessed him, the defendant said he was assessed in Missouri; that in 1895 the defendant again told the former assessor of Callaway county that he was living in Mexico that after June 1, 1895, the assessor of Audrain county called upon the defendant, at the Mexico Savings Bank, where he usually transacted his business, through which bank he collected interest on loans he had outstanding in Audrain county, and in which bank he kept a deposit, and furnished him an assessment blank, and asked him to make a return; that the defendant refused to do so, and said he was not a resident of Audrain county; that thereupon the assessor examined the records of the county, and found that the defendant held mortgages amounting to $34,550 for money he had loaned in that county; that thereupon the assessor assessed him for that amount of personal property, and, the defendant refusing to pay, this suit was brought. Upon this showing it cannot be said that there is no evidence to support the verdict of the jury, finding that on June 1, 1895, the defendant was a resident of Audrain county; but, on the contrary, the great weight of the evidence and the physical facts support the finding of the jury. Thus, on the defendant's showing, he was a visitor at his daughter's...