Vieths v. Planet Property & Financial Co. , 64 Mo. App. 207 ( 1895 )

Rombauer, P. J.

This is a suit upon a special tax bill for alley paving. The trial resulted in a judgment for plaintiff, from which all the defendants appeal, assigning for' error that the plaintiff failed to make out a prima facie case, and that the court excluded legal and competent evidence offered by them.

The improved alley is in the city of St. Louis. The charter of that city provides that this class of work shall be paid for in special tax bills made out by the president of the board of public improvements, registered by him in his office in full, and registered and countersigned by the city comptroller. The charter further provides that “such certified bill shall in all cases be prima facie evidence that the work and material charged in such bill shall have been furnished, and of the execution of the work and of the correctness of the rates or prices, amount thereof, and of the liability of the person therein named as the oivner of the land charged with such bill tó pay the same. Provided that nothing in this section shall be so construed as to prevent the party charged with the payment of said bill from pleading, in reduction of the amount of same, that the work therein mentioned was not done in a good and workmanlike manner.”

The meaning of this provision seems to be very plain.- Its italicized portion was originally inserted,, because the law provided for the personal liability of the owner. Such liability was once upheld by the courts (St. Louis v. Clemens, 36 Mo. 467), but subsequently denied on the ground of its unconstitutionality. Neenan v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 Mo. 44. These latter decisions, as was said in Stadler v. Roth, 59 Mo. 400-402, have in a measure destroyed the consistency of the entire provision, but have still left the tax bills as prima facie evidence of the other facts recited therein. It was there held that .the entire omission of the name of the owner from the bill did not vitiate it, as the bill was a proceeding in rem against the lot, and any party might be sued thereon who was shown upon-the trial to have an interest in the property. Such also was the ruling in St. Louis v. DeNoue, 44 Mo. 137. The only logical deduction which can be made from these decisions is that, while a special tax bill might be enforced against the lot by making any person a defendant in the suit who has an interest in the property, even if he is not named as owner of the property therein, yet as to the owners not thus named the tax bill is not prima facie evidence of liability, but only a link in the chain of evidence necessary to establish the validity of the charge against the lot.

The tax bill in the case at bar was originally issued against the lot, naming as its owner the Planet Property and Financial Company alone. Subsequently the tax bill was amended by the addition by one Pasquier, the special tax clerk in the office of the president of the board of public improvements, of the names of the other defendants as owners. As thus amended it was re-executed by the president of the board, and comptroller, and re-registered in their respective offices. The defendant claimed, upon such showing, that the tax bill ceased to be prima facie evidence for any purpose. This contention is wholly untenable. It was the duty of the city officials to issue to the plaintiff a regular and complete tax bill, and until such duty was fully performed their right of amendment within the period of limitation remained, regardless as to whether the tax bill originally issued was void or voidable, or merely imperfect in some respect. Eyermann v. Blakesley, 13 Mo. App. 407; Eyermann v. Scollay, 16 Mo. App. 498; Kiley v. Cranor, 51 Mo. 541; Galbreath v. Newton, 45 Mo. App. 312. The trial court, therefore, was right in deciding that the plaintiff made out a prima facie case against all the defendants by offering in evidence the tax bill thus amended.

In suing upon a special tax bill parties who are named in it as owners, it is sufficient for the plaintiff to allege in the first instance that the officers of the municipality, duly authorized so to do, have issued to him the special tax bill on which he sues, setting out its provisions, and stating that the defendants named therein are the owners of the lot sought to be charged. We have intimated this repeatedly, and the Kansas City court of appeals has decided it expressly. Duncan v. Kirtley, 54 Mo. App. 655. The suit is one upon the tax bill, and not for work and labor done. If the owners thus named want to show either the imperfect execution of the work, or that the doing thereof was not properly authorized, or any other fact which goes to the legality or extent of the charge, they can not do sb by pleading the general issue, as was done in this ease. The facts constituting such defense should be-specially set out in the answer, so as to advise the plaintiff what he will be required to meet. A general denial puts in issue only such facts as are included in the allegations necessary to the support of the plaintiff’s case. It is for this reason we can not put the trial court in the wrong for ruling out the evidence offered by the defendants. A further and equally cogent reason is that it nowhere appears either what the evidence thus offered was, or what facts the defendants intended to prove thereby; for neither the evidence nor any offer of proof is contained in the record.

All the judges concurring, the judgment is affirmed.