State ex rel. McBride v. Byrd , 279 Mo. 481 ( 1919 )

BLAIR, P. J.

This and the case of State ex rel. v. Sheetz, ante page 429, are companion cases. Most of the questions raised in this case are decided in that. The judgment in this case was for defendant.

Appeal

I. Defendant in this case, in 1910, had appealed to the circuit court from the judgment of the county court. That appeal was not shown to have been pending when this suit was tried in 1915. It is contended this suit for taxes was premature because of the appeal aild Ümt this justifies the judgment of the trial court in this case. Under the statute then in force (Sec. 5592, E. S. 1909)- defendant’s appeal, even if pending, could, take to the circuit court but two questions: (1) compensation for property appropriated and (2) damages for “property prejudicially affected by the improvement.” It was expressly provided that the progress of the work should neither be stayed nor prevented and that the “subsequent proceedings in the circuit court shall affect only the rights and interest of the appellant in property located in such drainage district.” The appeal did not affect the benefits assessed or their collection. [Drainage Dist. v. Railroad, 216 Mo. l. c. 715 et seq.] The case cited by defendant (Tarkio Drainage Dist. v. Richardson, 237 Mo. l. c. 75) was decided on different facts and under a wholly different statute (Secs. 8251 et seq., E. S. 1899; Secs. 5496. et seq., E. S. 1909) usually termed the “Circuit Court Act.”

Estimates

II. Section 5584, Eevised Statutes 1909, provided that the viewers “shall make separate estimates of the cost of location and construction, an'd apportion the same to each tract in proportion to the benefits or damages that may result to each.” It is said this was not done. The trouble with this contention is that the record shows the viewers reported the required estimates and that the county court, with the parties before it, found as a fact that they had done so. There is no basis for this complaint.

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III. For the reasons given in the preceding paragraphs and in the companion case referred to, this judgment is reversed and the cause remanded with directions to enter judgment for plaintiff in accordance with the prayer of the petition.

Graves, J., concurs; Bond, J., concurs, in the result; Woodson, J., absent.