The State ex rel. Bauer v. Edwards

• Decision Date: 08 June 1898
• Citation: 46 S.W. 160,144 Mo. 467
• Parties: The State ex rel. Bauer, Collector, v. Edwards et al., Appellants
• Court: Missouri Supreme Court

46 S.W. 160

144 Mo. 467

The State ex rel. Bauer, Collector, v. Edwards et al., Appellants

Supreme Court of Missouri, First Division

June 8, 1898

Appeal from Cole Circuit Court. -- Hon. D. W. Shackleford, Judge.

Affirmed.

Edwards & Edwards for appellants.

(1) The mandate of this court was to render judgment for "taxes sued for." Not for interest, penalties and cost and attorney's fees. (2) Undoubtedly defendants had the right to be heard on any matter not contained in the mandate of this court against them. We were entitled to our day in court. The Constitution grants this, even in tax cases. (3) The attorney was never legally appointed in this case because never approved by the mayor. (4) The attorney when properly appointed can only recover his per cent when the money is collected and paid into the treasury, and not one dollar has ever been collected. (5) This court will review matters once heard in the same case where to sustain the former decision would be unjust and that is this case exactly. Hamilton v. Marks, 63 Mo. 172; Boone v Shackleford, 66 Mo. 493; Bird v. Sellers, 122 Mo. 33; Spohn v. Railroad, 122 Mo. 1. In this latter case this division reheard the case on the identical record on second appeal raising the question of the correctness of the ruling of division number two, on the evidence of McCarty and Myers, and overruled said division, and this very point was ably presented to this court by Judge Shirk in the case, but the court overruled it. Spohn v. Railroad, 116 Mo. 617. Again, only one point decided by Judge Macfarlane is asked to be reviewed, and that one is a vital position, as by his decision he completely wipes from the statute of the State an important provision of the law. We refer to that part of his decision holding that the "mayor is presumed to approve whatever the city council does." See this case reported in 136 Mo. 365. The other questions asked in this case to be reviewed were there passed over without comment.

A. M. Hough for respondent.

(1) The cause having been remanded from the Supreme Court with specific directions, and those directions having been followed in the entry of the judgment appealed from, the same should be affirmed on this appeal. Reese v. McDaniel, 131 Mo681; Stump v. Hornback, 109 Mo. 272; Mason v. Crowder, 98 Mo. 353; Chouteau v. Allen, 74 Mo. 56; Shroyer v. McKeel, 67 Mo. 589; Hurck v. Erskine, 50 Mo. 116. (2) The appeal is clearly without merit, and respondent is entitled to ten per cent damages, and so asks. R. S. 1889, sec. 2305; Phillips v. Phillips, 107 Mo. 364; Rose v. Cobb, 64 Mo. 464; Esty v. Post, 76 Mo. 413; Taylor v. Scott, 26 Mo.App. 249; Allen v. Lang, 28 Mo.App. 440; Egyptian Levee Co. v. Jester, 42 Mo.App. 322.

OPINION

Brace, P. J.

This was a suit instituted in the circuit court of Cole county for the enforcement of the statutory lien upon certain lots in Jefferson City for delinquent city taxes for the years 1889, 1890, 1891 and 1892, in which the plaintiff recovered judgment in that court for the taxes, interest and costs sued for, and the defendant took an appeal from that judgment to this court, which appeal was heard and determined by this court at its October term, 1896 (State ex rel. v. Edwards, 136 Mo. 360, 38 S.W. 73), and the judgment of the circuit court "reversed and the cause remanded with directions to enter judgment for enforcing the lien of the city for all taxes sued for except those levied upon the assessment made in the year 1889." It appears from the abstract of the record filed herein, that after the cause had been remanded to the circuit court with these directions, and at the March term, 1897, of said court, the defendants by leave of court filed an amended answer to the plaintiff's petition therein, the same being a denial of each and every allegation in the petition contained. Thereupon the plaintiff filed a motion to strike the amended answer from the file, for the following reasons: "First. Because before the filing of such amended answer the cause had been remanded from the Supreme Court with specific directions to enter judgment for plaintiff enforcing the lien of the city of Jefferson for all taxes sued for except those levied upon the assessment made in the year 1889. Second. Because the cause having been remanded by the Supreme Court with specific directions, no proceedings are authorized in this court except an entry of judgment in accordance with such directions." This motion was sustained by the court, and the defendants excepted. The plaintiff thereupon moved the court to enter judgment against the defendants for the taxes, penalties, interest and costs sued for except those levied upon the assessment made in the year 1889, in conformity to the mandate of the Supreme Court, which motion was sustained over the objections of the defendants, and they excepted. Thereupon the court entered judgment as prayed for, to which action of the court defendants excepted, and perfected this appeal.

In this record we find no error of which the defendants can complain. "When this cause was remanded to the circuit court with directions to enter a particular judgment, that court had no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed. All other matters had become res adjudicata and could not be reopened." Stump v. Hornback, 109 Mo. 272, 18 S.W. 37, and cases c...