Walsh v. First Nat. Bank of Monett

• Decision Date: 06 December 1909
• Parties: WALSH v. FIRST NAT. BANK OF MONETT.
• Court: Missouri Court of Appeals

123 S.W. 1001

WALSH v. FIRST NAT. BANK OF MONETT.

Springfield Court of Appeals. Missouri.

December 6, 1909.

On Petition for Rehearing, January 6, 1910.

1. APPEAL AND ERROR (§ 592)—ABSTRACT OF RECORD—COMPLIANCE WITH RULES.

Where one appealing to the Springfield Court of Appeals failed to comply with the rules in filing abstract of the record, but offered as an excuse that the case first went to the Kansas City Court of Appeals and was transferred from such court, and that he had not noticed the difference in the rules, the excuse was sufficient.

2. APPEAL AND ERROR (§ 586)—BILL OF EXCEPTIONS — FILING IN TRIAL COURT.

An appellant's abstract of the record recited in narrative form that the court made an order of record allowing until a certain date to prepare and file a bill of exceptions, and that appellant within such time filed its bill, duly signed by the judge, and the bill became a part of the record, "which said bill of exceptions is as follows," and then followed the bill. Held, a sufficient showing in the abstract that the bill of exceptions was filed in the court below.

3. MUNICIPAL CORPORATIONS (§ 513)—ACTION ON TAX BILLS—PLEADING.

In an action to cancel tax bills issued against plaintiff's property for a municipal improvement, in which plaintiff alleged that defendant was not the owner of the tax bills, a general denial put the ownership of the bills in issue.

4. MUNICIPAL CORPORATIONS (§ 513) — PUBLIC IMPROVEMENTS—ACTION TO CANCEL TAX BILL—PARTIES.

In an action to cancel tax bills issued by a city against plaintiff's property for a municipal improvement, plaintiff's cause of action would not fail, though it appeared that defendant was not the owner of the bills, where their real owner actually conducted the defense, since in such case he had his day in court and would be bound by the judgment, though not a party to the record.

5. MUNICIPAL CORPORATIONS (§ 491) — PUBLIC IMPROVEMENT.

An objection by a property owner that the ordinances under which work on a municipal improvement was done was vague, indefinite, unreasonable, and oppressive was insufficient, as he should have pointed out what essentials had been omitted.

6. MUNICIPAL CORPORATIONS (§ 294) — PUBLIC IMPROVEMENT—NOTICE OF IMPROVEMENT.

A notice of a proposed public improvement, reciting that "detail plans and sewer profiles" would be kept on file at the office of the city clerk and at the office of the engineers, where the contractors would have ample opportunity to secure all data for bidding, was sufficient, as against an objection that intending bidders could not do so intelligently.

7. MUNICIPAL CORPORATIONS (§ 296) — PUBLIC IMPROVEMENTS.

Under the statute requiring the estimate of the total cost of a municipal improvement and the apportionment thereof to the property owners to be made by the city engineer, the estimate and apportionment must be made by the proper officer in substantial compliance with the statute.

8. MUNICIPAL CORPORATIONS (§ 296) — PUBLIC IMPROVEMENTS—ESTIMATE AND APPORTIONMENT.

Where an estimate and apportionment was made and signed by the city engineer and also by those who had prepared plans and specifications under employment by the city, the estimate and apportionment was sufficient, as it was as much the act of the engineer as if he had signed it alone.

9. MUNICIPAL CORPORATIONS (§ 460) — PUBLIC IMPROVEMENTS.

Where a city employed engineers to make plans and specifications for a municipal improvement and agreed to pay them a certain per cent. of the cost of construction, such commission should not be included in an assessment, and property owners were not liable therefor.

10. MUNICIPAL CORPORATIONS (§§ 460, 474)— PUBLIC IMPROVEMENTS—TAX BILLS—VALIDITY.

The fact that tax bills issued by a city against property for a public improvement erroneously included commissions paid engineers for preparing plans and specifications, and that some lots were omitted and no tax bills issued against them, did not render the bills void.

11. MUNICIPAL CORPORATIONS (§ 474)—PUBLIC IMPROVEMENTS—TAX BILLS.

The fact that, in making an assessment against property for a municipal improvement, some lots were omitted and no tax bills issued against them, entitled a property owner to be relieved from the charge for lots omitted.

12. MUNICIPAL CORPORATIONS (§§ 488, 489)— PUBLIC IMPROVEMENT—ESTOPPEL OF LANDOWNER.

Where a property owner knew that work was being done on a municipal improvement and stood by with acquiescence until it was completed, he could not thereafter be heard to complain of any defects which did not go to the validity of the tax bills, in a suit by him to cancel bills.

Appeal from Circuit Court, Barry County, F. C. Johnson, Judge.

Action by John Walsh against the First National Bank of Monett. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Bill in equity by plaintiff to cancel certain tax bills issued by the city of Monett, a city of the third class, against his property, to pay for the construction of a district sewer. It is alleged that the tax bills were issued to J. J. Dunnegan, contractor, in payment for the work, and after their delivery were transferred to defendant, who is now the holder and is seeking to collect the same from plaintiff's property. As grounds to justify cancellation, the petition charges: That the ordinances under which the work was done are "vague, indefinite, unreasonable, oppressive." That no notice was given by which persons desiring to bid upon the construction of said sewer could do so intelligently. That said sewer was not constructed under the supervision of the city engineer or any other officer of said city. That no estimate was made and filed with the said city engineer or with any city officer of said work after the same had been constructed, so as to ascertain the proportion of the cost thereof with which plaintiff's property is chargeable. The answer is a general denial. Decree for plaintiff canceling tax bills, and defendant appealed.

J. T. Burgess, D. S. Mayhew, and M. A. Fyke, for appellant. T. D. Steele and W. Cloud, for respondent.

COX, J. (after stating the facts as above).

It is first contended by respondent that appellant has failed to comply with the rules of this court in filing abstract of the record, and insists that appellant should suffer the penalty prescribed by the rules for his neglect. Appellant admits that he has not complied strictly with our rules, but excuses himself upon the ground that this case first went to the Kansas City Court of Appeals and was transferred to this court, and that he had not noticed the difference in the rules. We shall accept the excuse and pass that point.

It is next contended by respondent that there is no proper showing in the abstract of record filed by appellant that the bill of exceptions was filed in the court below and that we should disregard it here. Appellant's abstract of the record recites in narrative form that the court made an order of record allowing defendant until and including the first day of the next term of court in which to prepare and file bill of exceptions, and that appellant, within the time prescribed by the court, filed its bill of exceptions, duly signed by the...