The State ex rel. Wyatt v. Hoyt

• Citation: 27 S.W. 382,123 Mo. 348
• Parties: The State ex rel. Wyatt, Collector, v. Hoyt, Appellant
• Decision Date: 19 June 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 382

123 Mo. 348

The State ex rel. Wyatt, Collector, v. Hoyt, Appellant

Supreme Court of Missouri, First Division

June 19, 1894

Appeal from Clay Circuit Court. -- Hon. James M. Sandusky, Judge.

Reversed and remanded.

Joseph Johnson and Kagy & Bremermann for appellant.

(1) Assessments of personal property are made by calling upon and obtaining list of property from tax payer, or by leaving list for him to fill. All property owned June 1 of each year shall be liable for taxes thereon for ensuing year. R. S. 1879 secs. 6685, 6716; R. S. 1889, secs. 7531, 7569. (2) If for any cause tax payer fail to make or furnish list, the assessor shall give either written or printed notice by leaving at residence or place of business not less than ten or more than twenty days. R. S. 1879, sec. 6686; R. S. 1889 sec. 7532. (3) If for any reason lists are not furnished, the assessor shall himself make list, on his own view, or may examine persons on oath as to facts. R. S. 1879, sec. 6689; R. S. 1889, sec. 7535. (4) Assessments may be raised or reduced by the county board of equalization, and it may send for persons and papers to obtain information as provided by section 7519, Revised Statutes, 1879, and section 7521 Revised Statutes, 1889, but in no case can that be done without notice to tax payer, for the board acts in a judicial capacity, and notice is a prerequisite to jurisdiction. Ins. Co. v. Charles, 47 Mo. 462; Railroad v. Washington County, 3 Neb. 43; George v. Middough, 62 Mo. 549; Laughlin v. Fairbanks, 8 Mo. 367; Mining Co. v. Neptune, 19 Mo.App. 438; State ex rel. v. Hotel Co., 9 Mo.App. 450; Relfe v. Ins. Co., 11 Mo.App. 374. (5) Prior to the act of 1887, which went into effect June 19, 1887, personal taxes could not be collected by suit, but only "taxes assessed on and after June 1, 1887, could be collected by suit. R. S. 1889, sec. 7626. The remedy prior to that act was by distraint. R. S. 1889, sec. 7608. (6) The court below gave judgment for the taxes of 1887, interest, etc., aggregating $ 223.42. The judgment includes the following items: Tax, 1887, $ 125; interest on same, $ 53.75; collector's fees, $ 26.80; attorney's fees, $ 17.87; in the aggregate, $ 223.42. (7) It may be said, and is doubtless true, that this point was not made below. If, however, the petition does not state a cause of action as to this item, or if the error is apparent on the face of the record, this court will consider the point. Campbell v. Carroll, 35 Mo.App. 605; Ingliss v. Floyd, 33 Mo.App. 566. (8) The material facts are undisputed, and it is the duty of the appellate court to review the action of the trial court thereon and decide if its judgment is warranted by such facts. It is undisputed that plaintiff sued for and recovered the tax for 1887, and that no right of action existed is without doubt.

H. M. Meriwether for respondent.

(1) It is admitted by appellant that the petition states a cause of action against defendant for the years 1888 and 1889, but appellant contends that no cause of action is stated for the year 1887. This point was not raised in the court below at any stage of the proceedings. The cause was tried upon a different theory. It is mentioned for the first time in the brief of appellant. (2) Nor is the point well taken on the merits of the question. State ex rel. v. Tittman, 103 Mo. 553; State ex rel. v. Rouse, 49 Mo. 592; Greeley v. Bank, 98 Mo. 458. (3) However, if the court should be of opinion that the contention of appellant is correct as to the taxes for 1887, respondent would prefer to enter a remittitur in this court for said year rather than have a reversal of the judgment.

Macfarlane J. Barclay, J., dissents.

OPINION

Macfarlane, J.

This is a suit under section 7626 of the statute, to recover delinquent personal taxes charged against defendant for the years 1883, 1884, 1885, 1886, 1887, 1888 and 1889, with interest, penalty and cost. The defense was, first, the statutes of limitation; and, second, a special plea that the valuation of the property given in by defendant had been raised by the assessor, without authority of law, and without notice.

The suit was commenced in Jackson county, and was taken to Clay county upon a change of venue, where it was tried by the court, without a jury.

On the trial, plaintiff read in evidence the tax bill, which was properly certified. This bill set out the valuation of the property for several years, the amount of delinquent taxes in favor of the several funds for each year, and the totals. The valuations, as they appear upon the bill, were as follows: 1883, $ 1,000; 1884, $ 15,000; 1885, $ 15,000; 1886, $ 10,000; 1887, $ 10,000; 1888, $ 20,000; 1889, $ 30,000. The total taxes amounted to $ 1,250.

Defendant testified, that for each of these years he filled out the lists furnished him by the assessor, in which the personal property owned by him was included, and that the lists were subscribed and sworn to by him, and returned to the assessor; that the valuation of the property as given in by him "ranged from $ 100 to $ 500 per year," and the valuations were raised to the amounts shown by the tax bill without notice to him.

Defendant never had a hearing before the county board of equalization, nor was the matter of his assessment ever brought before said board.

The assessor's books for the years 1887, 1888 and 1889 show that the amount of the assessment was "estimated by the assessor." The evidence tends to prove that the lists left with defendant by the assessor were never filled up and returned to his office. On cross-examination, defendant was not able to give the exact property or amount he had given in as the value of his property for any year, nor could he state definitely the name of the assessor or deputy to whom he returned the lists, nor the location of the office to which they were returned.

The evidence of the deputy clerk was to the effect that, after a careful examination of the assessment lists deposited in the office, none were found which had been returned by defendant. The lists upon which estimates were made by the assessor for the years 1887, 1888 and 1889, were found in the proper place, and were introduced in evidence. These showed the valuations of those years as given in the tax bill. This was, in substance, the evidence given on the trial.

At the close of the evidence, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.

Defendant asked, and the court gave, the following declaration of law:

"The court, sitting as a jury, declares the law to be, that, if it finds from the evidence, that the defendant presented sworn statements containing lists of his personal property, and the value of the same, to the assessor of Jackson county, Missouri, or to any of his deputies, each and every year mentioned in plaintiff's petition, and that said lists were changed, or the value of defendant's personal property was increased by said assessor, or anyone in his employ, without the knowledge or consent of defendant, then the finding and verdict should be in favor of the defendant."

The court found for the plaintiff for the amount claimed for each of the years. A motion for a new trial was filed. Upon hearing the motion, at the suggestion of the court, plaintiff entered a remittitur for the amount found for the years 1883 to 1886, both inclusive, and judgment was allowed to stand on the amounts found due for the other years, 1887, 1888 and 1889, and the motion for a new trial was overruled. Defendant appealed.

I. The statute requires that the assessor shall call at the office, place of doing business or residence of each person required to list property, and shall require such person to make a correct statement of all taxable property owned by him, or under his care, charge or management, except merchandise. The person listing the property is required to enter a true and correct statement of such property in a printed or written blank, prepared for that purpose, which statement, after being filled out, shall be signed and sworn to as required by other sections. R. S. of 1889, sec. 7531; R. S. 1879, sec. 6685.

In case the person required to list his property shall be sick or absent when the assessor calls for a list of his property, the assessor is required to leave at the office, the usual place of residence or business of such person, a written or printed notice, requiring such person to make out and leave at the place named by the assessor, a sworn statement of the property he is required to list, and to leave with such notice a printed or written blank for the statement required of such person. He is required further to carefully note the date of leaving such notice, and the name of such person. It is further provided that if such person shall neglect or refuse to deliver the statement, properly made out, signed and sworn to as required, the assessor shall himself make the assessment. R. S. 1879, sec. 6686; R. S. 1889, sec. 7532.

The assessor is required, in case no list of property shall be given to him in proper time and manner, to make out the list himself, on his own view, or "on the best information he can obtain." R. S. of 1879, sec. 6689; R. S. of 1889, sec. 7535.

In such case the assessor is also given the power to assess the property of such person at double its valuation. R. S. 1879, secs. 6686, 6690; R. S. 1889, secs. 7532, 7536.

The revenue laws also provide a county board of equalization, to which any person, who may think himself aggrieved by the assessment of his property, may appeal. R. S. 1879, secs. 6671, et seq., and sec. 6719; R. S. 1889, sec. 7517, et seq., and...