City of Mexico ex rel. Collector v. Cauthorn , 1887 Mo. App. LEXIS 305 ( 1887 )

Philips, P. J.

This is an action to recover from the estate of Daniel Corker, deceased, the sum of one hundred and fifty dollars, alleged to be owing to the city of Mexico, a municipal corporation, as taxes against said estate.

The evidence tended to show, and so the court found, that, at the time of the testator’s death, he was domiciled inside the corporate limits of the city of Mexico ; he died testate, and Cauthorn became executor of the estate, and, as such, took charge of the assets; Cauthorn was not a resident of the said city ; the taxes claimed were assessed for the year 1885, while the estate, consisting of bonds, notes and accounts, were held by the executor, whose residence was outside of the corporation.

The court found the issues for the defendant, and the plaintiff has appealed. The respondent suggests several grounds on which the action of the trial court ought to stand: it is claimed that the petition alleges that the plaintiff city was incorporated under a special act of the legislature, and was empowered to levy and collect taxes within its corporate limits, but that there .was no evidence offered at the trial to show that the city had any authority to levy or collect taxes. This objection is not well taken. The practice act (sect. 3549) provides that, “in pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title, and the day of its passage, and the court shall thereupon take judicial notice thereof.”

The petition alleges that plaintiff is a municipal corporation, duly organized under, and existing by virtue of, an act of the General Assembly of the state of Missouri, entitled “An act to revise and amend an act, entitled, ‘an act to incorporate the city of Mexico,’ approved February 17, 1857, and all acts amendatory thereof and supplementary thereto, and to reduce the same into one act; approved March 27, 1874.” The petition then avers that, by virtue of said act of 1874, the city of Mexico was empowered to sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity, etc.; that said city, by virtue of said act of 1874, has “the power to levy and collect taxes upon all property, real and personal, taxable by law for state purposes, within the limits of said city.” These averments were clearly sufficient. Apitz v. Railroad, 17 Mo. App. 419 ; Harlan v. Railroad, 18 Mo. App. 483.

II. It is next objected that there was no evidence whatever to show that the city authorities ever made any levy of taxes against the property in'question. We are of opinion that this objection is well taken. The petition avers that the city assessor assessed, for the year 1885, the personal property of the estate at the sum of twenty-five thousand dollars, and “that a tax was, by said city of Mexico, duly levied on said assessment, which tax amounts to the sum of one hundred and fifty dollars.” It was admitted that the assessment was made, but there was no admission as to the truth of the allegation respecting the levying of the tax. This matter stood controverted. The record does not disclose any proof of this material matter. There is nothing whatever, outside of the naked averment of the petition, to show that the city authorities imposed any tax on the property of the estate. Without this preliminary act, the city collector was not authorized to demand or collect any such tax. This is too well settled to require any citation of authorities.

On this state of the record the finding of the court, sitting as a jury, was for the right party, and its judgment must be 'affirined; It is so ordered.

Ellison, j., concurs; Hall, J., absent.