Menefee v. Bell , 1895 Mo. App. LEXIS 488 ( 1895 )

Gtill, J.

This is an action on certain special tax bills issued for the construction of a district' sewer in Kansas City. On a trial by the court below, without the aid of a jury, there was judgment for plaintiff, and defendants appealed.

I. The first objection raised relates to the sufficiency ■of the certificate indorsed by the board of public works on the ordinance providing for the construction of the sewer. The city charter of 1889 required the board of public works to establish a system of sewers for the entire city. Sec. 9, art. 6. And then, in order to secure the construction of sewers in accordance with such system, it is further provided that “no ordinance * * * providing for the construction of any public or district sewer, shall be passed by the common council, unless the same has indorsed thereon a certificate in writing of the board of public works, that * * * the sewer proposed to be constructed thereunder conforms to the system of sewers established by the said board.” Sec. 37, art. 17.

Following this requirement, there was indorsed on the back of the ordinance in question a certificate to the effect that the proposed sewer conformed to the system of sewers established by the board of public works. This was signed by each and all of the four members of that body. The objection seems to be that this certificate should have been signed and attested by the president and secretary only, and not by the entire board. "We think there is no merit in the point. From the testimony, it sufficiently appears to have been the action of the board of public works. And while it may have been the more formal and usual manner to have the president and secretary of the board alone to attest its action, we know of no reason for rejecting a certificate signed by all the members, since the evidence clearly shows that it was their joint official action.

The second assignment of error, relating to the alleged want of authority in Maloney to sign the name of the president of the board of public works to the tax bills, is disposed of in McQuiddy v. Vineyard, 60 Mo. App. 610, and Dollar Savings Bank v. Midge, 62 Mo. App. 324, two cases lately disposed of by us.

II. The only remaining point deserving attention is to the effect that the trial court erred in giving judgment on the tax bills, in the absence of proof that plaintiff filed with the board of public works the notice of suit, as provided for in section 18, article 9, of the city charter. By said section, the tax bills are made a lien on the property for the period of two years after issue, or to the end of a suit, if begun in that time, etc., “provided, however, that if such suit shall be brought within the two years, the plaintiff, or plaintiffs therein, shall, after commencing the suit, and not later than thirty days after the end of the two years, in person, or by attorney or agent, file in the office of the board of public works, a written statement showing the tax bill sued on, and when and in what court, and against whom the said suit was brought. The board of public works shall, immediately after the filing of any such statement, note on the registry of such tax bill the time of the filing of such statement and substance of the statement. If plaintiff, or plaintiffs, in such suit shall fail to file such statement within the time above limited, the land described in the tax bill sued on shall be free from the lien of the tax bill, and of any judgment in such suit, no matter when rendered, and shall not be sold to pay any such judgment.”

In answer to defendant’s contention, it is sufficient to say that no such defense was set up in the answer; it was only a general denial. The failure to file notice of suit in the office of the board of public works was new matter, which defendant ought to have pleaded and proved. It was no part of plaintiff’s case in chief. He established a prima facie right of recovery by the mere introduction of the tax bills and proof of assignment. Guinotte v. Ridge, 46 Mo. App. 260-262, and authorities cited. “Every tax bill shall, in any suit thereon, b e prima facie evidence of the Validity of the bill, of the doing of the work, and of the furnishing of the material charged for, and of the liability of the land to the charge stated in the bill.” Sec. 18, art. 9, K. O. Charter.

After commencing the suit to enforce the tax bills, it was made the duty of the plaintiff to file this statement of the beginning of his suit, etc., with the board of public works; and if he failed so to do for more than thirty days after the end of the two years, such failure operated in the nature of a condition subsequent to defeat the lien. “It is never necessary,” says a learned author, “for the plaintiff, in his declaration, to state, or in any manner to take notice of, any condition subsequent, annexed to the right which he asserts. For the office of such condition is not to create the right on which the plaintiff founds his demand, but to qualify or defeat it. The condition, therefore, if performed or complied with, furnishes matter of defense, which it is for the defendant to plead.” Gould’s Pleadings, sec. 17, chap. 4.

We discover no error in the record, and the judgment will be affirmed.

All concur.