Weber v. Schergens

• Citation: 28 Mo.App. 587
• Parties: JOSEPH WEBER, Appellant, v. HENRIETTA SCHERGENS et al., Respondents.
• Decision Date: 17 January 1888
• Court: Missouri Court of Appeals

28 Mo.App. 587

JOSEPH WEBER, Appellant, v. HENRIETTA SCHERGENS et al., Respondents.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from the St. Louis Circuit Court, HON. AMOS M. THAYER, Judge.

Affirmed.

KEHR & TITTMANN, for the appellant: (1) The plaintiff has proved everything that need be proved to warrant a recovery on the tax bill. (2) The original assessment and the original tax bill based thereon were null and void. Weber v Schergens, 59 Mo. 389; Neenan v. Smith, 60 Mo 292; S. C., 50 Mo. 523; City v. Clemens, 49 Mo. 552; Morley v. Weakley, 86 Mo. 455; Farrar v City, 80 Mo. 394. (3) The original assessment and original bill being void, the president of the board of public improvements had the power to issue to the contractor a new special tax bill based on a new and valid assessment, and the judgment rendered in the suit brought on the old bill is not a bar to the suit brought on the new. Eyerman v. Blakesley, 13 Mo.App. 407; Eyerman v. Provenchere, 15 Mo.App. 256; Prendergast v. Richards, 2 Mo.App. 187.

LOUIS GOTTSCHALK, for the respondents: " A judgment upon a special tax bill, for defendant, which tax bill was irregular, but not void, is a bar to a subsequent action and a new tax bill issued is issued without authority." Eyerman v. Sculley, 16 Mo.App. 498. The special tax bill in this case was not void, but merely irregular. Neenan v. Smith, 60 Mo. 292, 294; Bank v. Arnoldia, 63 Mo. 229; Bank v. Nelson, 64 Mo. 420. The plaintiff was guilty of such laches, that he cannot maintain this action, nor had the board of public improvements a right, after such a lapse of time, to make any assessment. This must be done, under the charter of 1867, when the work is completed. Here fifteen years have elapsed. Gunby v. Brown, 86 Mo. 258. The lien of the tax commences from the time of the assessment and issue of the tax bill. Anderson v. Holland, 40 Mo. 600.

OPINION

THOMPSON J.

This was an action upon a special tax bill. A trial before the judge, sitting as a jury, resulted in a judgment for the defendants. The ground on which this judgment was rendered was the following state of facts, which stands admitted: That in the year 1869, a special tax bill was issued for the work and against the property named in the present tax bill; that an action was brought thereon against two of the parties who are defendants in the present action, and a judgment recovered therein in the circuit court, which, in 1875, was reversed by the Supreme Court and remanded to the circuit court. The case, as reported, is Weber v. Schergens, 59 Mo. 389; that thereafter the cause stood in the circuit court until the year 1877, when the plaintiff voluntarily dismissed it; that, in 1874, the plaintiff instituted another suit on the same special tax bill against three of the parties who are defendants in this suit, which, in 1875, was finally decided by the general term of the circuit court against the plaintiff, on a demurrer to the petition; and that, in 1884, the present tax bill was issued and the present suit afterwards commenced thereon. Upon these facts the learned judge of the circuit court took the view that the tax bill of 1869 was not void, because, if the Supreme Court had so regarded it, they would, in reversing the judgment of the circuit court, have rendered, or directed, a judgment for the defendants. As will be seen by the opinion of the Supreme Court (Weber v. Schergens, 59 Mo. 389, 393), the court took the view that the assessment was " unlawful" because the assessment had been based upon the cost of the work in front of the block within which the property was situated, instead of upon the cost of the entire work. But the court did not hold that the tax bill was, for that reason, entirely void and incapable of correction. To have so held must necessarily have resulted in a judgment for the defendants; since a void tax bill could not be the foundation of an action any more than a counterfeit promissory note, and it would be quite meaningless to remand a cause for further proceeding where the instrument which is the foundation of the action is wholly incapable of supporting a recovery.

Many decisions in this state show that irregularities in such special assessments, whereby the property is charged with a greater amount than its proportion of the cost of the entire work, do not render the tax bill absolutely void, so as to be incapable of amendment. In Neenan v. Smith (60 Mo 292) our Supreme Court, speaking on this subject, used the following language: " The court properly enough refused defendant's first instruction, because it made the tax bills entirely void if any other work or materials were apportioned or assumed in the bills than what was included in the contract. This would have invalidated the bills and deprived the contractor, who had honestly done his work, of all redress, if the engineer had made a trifling mistake in the matter of the computation or assessment. A proposition which would lead to such a result would be manifestly unjust, and cannot be law." This doctrine was reaffirmed in First National Bank v. Arnoldia (63 Mo. 229), where it was held, citing and following the case last cited, that the fact that a special tax bill is made to include work done by one who has no contract therefor with the city, does not invalidate the whole bill and prevent all recovery thereon. The same principle was applied in First National Bank v. Nelson (64 Mo. 418), where the city engineer had likewise apportioned the cost against the defendant's property upon an erroneous theory. This court applied the same principle in Creamer v. McCune (7 Mo.App. 91); holding that the engineer might correct his errors and issue a new tax bill, or that the trial court might, on the discovery of an error in a tax bill which is easily determinable and capable of rectification, apply the proper correction in the reduction of the amount to be recovered. In that case this court, speaking through Judge Lewis, said: " In Neenan v. Smith, above cited, it was held that an over-assessment resulting from the introduction of matters not properly chargeable against the defendant's property might be deducted by the jury, and the correct amount be thus ascertained. The rule is equally applicable here, where an over-assessment results from a failure to include certain assessable property in the apportionment. The circuit court refused to instruct for the plaintiff to this effect. The judgment is, therefore, reversed and the cause remanded." In the more recent and leading case of Farrar v. St. Louis (80 Mo. 379, 393), the Supreme Court, on the authority of Neenan v. Smith, and First National Bank v. Arnoldia, above cited, held that...