The State ex rel. Laffoon v. Wooldridge

• Decision Date: 12 December 1905
• Citation: 91 S.W. 125,191 Mo. 12
• Parties: THE STATE ex rel. LAFFOON, Collector, v. WOOLDRIDGE, Appellant
• Court: Missouri Supreme Court

91 S.W. 125

191 Mo. 12

THE STATE ex rel. LAFFOON, Collector, v. WOOLDRIDGE, Appellant

Supreme Court of Missouri, Division Two

December 12, 1905

Appeal from Cass Circuit Court. -- Hon. W. L. Jarrott, Judge.

Affirmed.

J. S Wooldridge for appellant.

(1) The parties alleged in the petition to have made the assessment and levy of taxes, to-wit, "the officers and agents of said State, county and township of Camp Branch of said county," had no legal power to make such assessment and levy of taxes on the land described in the petition. The allegations of the petition and plaintiff's theory of the case are that such parties assessed and also made the levy of taxes thereon; and the plaintiff is held to and bound by the allegations and theory of the petition, and can recover on no other theory. Oglesby v. Railroad, 150 Mo. 177; Witascheck v. Glass, 46 Mo.App. 214; Martinowsky v. Hannibal, 35 Mo.App. 79; Fill v. Coal Mining Co., 23 Mo.App. 224; Brooks v. Yocum, 45 Mo.App. 521; Bruce v. Sims, 34 Mo. 351; Wilson v. Albert, 89 Mo. 546; Kahn v. Weill, 73 Mo 213; Whitstone v. Shaw, 70 Mo. 575. (2) Statutes in relation to taxation must be strictly construed and closely pursued. Every essential fact to the exercise of the taxing power must appear in evidence. Corn v. Cameron, 19 Mo.App. 582; Dillon on Municipal Corporations, secs. 573 582; Durrett v. Stuart, 11 S.W. 773; State ex rel. v. St. Louis County Court, 113 Mo.App. 53, 84 Mo. 234; Noll v. Morgan, 82 Mo.App. 118; Railroad v. Apperson, 97 Mo. 300; Blackwell on Tax Titles (2 Ed.), 225; Campbell County v. Taylor, 8 Bush 206; Westfall v. Preston, 49 N.Y. 853; Beckwith v. English, 51 Ill. 147; 3 Washb. Real Property, 223; Allen v. Harnett, 116 Mo. 287; Moreau v. Detchemendy, 18 Mo. 522; Am. Mut. Aid Society v. Helburn, 2 S.W. 495; Welty on Assessments, sections 275, 282, 299, 321; City of Fort Smith v. Dodson, 11 S.W. 689; Lyon v. Alley, 130 U.S. 177. (3) Bill of exceptions presented to the judge of the court for signature, but was not signed or certified by him. R. S. 1899, sec. 729.

D. C. Barnett and Geo. M. Summers for respondent.

Appellant has filed no bill of exceptions in this case, and therefore, there is nothing for this court to consider but the record proper. As the record proper in this case consists of the petition of the plaintiff, the answer of defendant and the finding and judgment of the court, these are the only things before this court. As the petition is in due and regular and approved form, fully alleging all necessary allegations in a tax suit, and the finding and judgment of the court are against defendant and in favor of the plaintiff on all the issues, we submit that there is nothing for this court to do but to affirm the judgment of the lower court.

J. S. Wooldridge for appellant in reply.

Plaintiff makes no objections to defendant's brief in this case on the score of unfaithfulness, inaccuracy or want of conformity to the facts of the case. It is tacitly admitted to be true in its contents and make-up. Respondent's objections to appellant's brief go to the extent, that because the judge for some unknown reason, some undivulged cause, did not sign the proffered bill of exceptions, appellant has no standing in this court. There is at least a record before this court, and upon that record the judgment is erroneous, wherefore, appellant prays its reversal by the court, and for all other proper relief.

OPINION

FOX, J.

This case is brought here by appeal from a judgment of the Cass County Circuit Court against the defendant, in the sum of one hundred and seventy-eight dollars and fifty-four cents.

This is a suit for back taxes, and was commenced in March, 1902. At the September term, 1902, plaintiff filed an amended petition, upon which the trial was had. On the 9th day of September, 1902, appellant, J. S. Wooldridge, filed his separate answer to the petition. The cause was tried and submitted to the court upon the evidence introduced, without the aid of a jury. On the 11th of October, 1902, there was a finding and judgment for the plaintiff. Motions for new trial and in arrest of judgment were duly filed and by the court overruled, and from the judgment rendered the appeal was prosecuted.

An examination of the record before us discloses that no bill of exceptions was filed in this cause preserving the action of the trial court during the progress of the trial; hence the evidence introduced upon the trial of this cause, as well as the action of the court in admitting or excluding such evidence, is not before us for consideration; neither is the action of the court in overruling defendant's motion for new...