State Ex Rel. Hawken v. Edwards ( 1926 )

This is a suit to collect taxes alleged to be due the city of Kirkwood by the defendant on personal property owned by him June 1, 1912.

The petition in the usual form is signed by J.G. Hawken, as collector, and by Henry Higginbotham, attorney.

The answer of the defendant George L. Edwards contains a general denial, and pleads the Statute of Limitations.

I. The Statute of Limitations is not available to the defendant. The tax was for the year 1913 on property possessed by defendant June 1, 1912; that tax became delinquentLimitations. January 1, 1914. Suit was filed December 10, 1918, within five years after the tax became delinquent, as required by Section 12932, Revised Statutes 1919.

II. Counsel for plaintiff introduced in evidence the tax bill on which the suit was brought. It showed the assessed valuation of appellant's property at $12,000, stating the different items constituting the amount sued for, totaling the sum of $84,Tax besides the interest, penalties and costs. PlaintiffBill. introduced no further evidence. It is claimed by appellant that a case was not made out by the mere introduction of the tax bill.

Section 12932 and Section 12945, Revised Statutes 1919, provide that a tax bill sued on, certified, "shall be prima-facie evidence that the amount named in said suit is just and correct."

That provision is comprehensive enough to include the correctness of the assessment and all of the proceedings necessary for the validity of the tax bill. Appellant, however, says that a case was not made out because there was no proof that Hawken was in fact the collector authorized to certify the tax bill. When the tax bill was offered the defendant said it was not disputed that the tax bill was signed by whoever was required to certify a bill of the kind, and that it was duly signed by Mr. Hawken, the Collector. This, of itself, should satisfy the objection.

The rule is that an objection on account of a plaintiff's incapacity to sue, if it appears upon the face of the petition, must be taken advantage of by demurrer. If it does not so appear it must be taken advantage of by answer. Otherwise the right to object on account of such incapacity is waived. [Benne v. Schnecko, 100 Mo. 250; Alexander v. Wade, 106 Mo. App. 141, l.c. 150; 31 Cyc. 736.] The evidence does not show that any such objection of any kind was made; the tax bill was admitted in evidence without objection.

It is further claimed that there was no proof that Mr. Higginbotham had been duly appointed attorney, employed by the collector and the county court to bring the tax suit, as required by Section 12944, Laws 1921, page 676, therefore there was no showing that he had authority to sue. We will presume that the trial court knew that Mr. Higginbotham was a duly licensed attorney, and therefore his authority to act in the suit is presumed unless directly challenged in an appropriate way. It cannot be taken advantage of after judgment. [Riley v. O'Kelly,250 Mo. 647; Miller v. Assurance Co., 233 Mo. 91.]

III. Appellant offered himself as a witness and testified over the objection of the plaintiff's attorney that the assessment was arbitrary. By that he meant that it was made by the assessor without a return being made by him of the property owned. He made no return of his personal property for assessment for 1911 and 1912. His personal property was valued at $2500 orExcessive $3000, and had been the same for 1911, 1912, 1913Assessment. and 1914. He made no return for 1911, and the assessor fixed the valuation at $6,000; he made no return for 1912, and the assessor fixed the valuation at $12,000. It may be inferred from the evidence of the defendant that these different valuations were taken from the valuation of his property in 1910, and doubled in each succeeding year. He complained therefore that his property was overvalued. The tax bill is prima-facie evidence that the assessor performed his duty in respect to it, and filed his book as the statute requires, with the county clerk. Such filing imparts general notice of its contents. [State ex rel. v. Reed Sutton, 159 Mo. l.c. 85.] Section 12812, Revised Statutes 1919, provides that any person who thinks himself aggreived by the assessment of his property may appeal. The defendant, therefore, having notice that his property was overvalued in the assessment, had his remedy plainly pointed out by the statute. The courts cannot take up the burden which the statute places upon assessors and boards of equalization. He failed to follow the method pointed out by the statute which is the one available to the taxpayer whose property is excessively valued. [Meyer v. Rosenblatt, 78 Mo. 495; State ex rel. v. Western Union Telegraph Co., 165 Mo. l.c. 523-524.] The prima-facie case made out by the introduction of the tax bill cannot be overcome by evidence tending to show an overvaluation. The failure of a property owner to return his property for taxes authorizes an assessor to fix a valuation. [State ex rel. v. Birch, 186 Mo. l.c. 214; State ex rel. v. Dungan, 265 Mo. l.c. 365.]

IV. Judgment was rendered for the plaintiff for $213.14, which included penalty and interest to date of judgment, July 24, 1922, during the May term of the Circuit Court of St. Louis County. The defendant thereupon filed his motion for new trial which was continued until the September term, 1922, and again continued until the January term, 1923, of said court, and atSetting that term, January 9, 1923, the motion was overruled.Aside The grounds advanced in the motion for new trial areJudgment. covered by what has already been said. On January 23, 1923, after the motion for new trial was overruled, the appellant filed a motion asking the court to set aside the submission, finding and judgment, and permit the defendant to file an amended answer. In that motion and in the proposed amended answer appended to it, it is alleged that since the submission of the case and judgment entered, the County Court of St. Louis County, on application of the appellant, had set aside and annulled the assessment on which the suit was founded. Attached as an exhibit is what purports to be a transcript from the records of the county court, which shows that the defendant Edwards failed to make an accounting of his personal property for assessment in 1911; that it was of the value of $3,000, and that his assessment was doubled that year and made $6,000; that he failed to make a return of his property for 1912, and it was arbitrarily doubled for that year and made $12,000. That such latter assessment was erroneous and illegal and was therefore annulled and vacated and the property ordered to be assessed for that year for $3,000.

The court overruled the motion of the defendant to set aside the submission and permit him to file an amended answer setting up those facts.

In support of his position appellant cites authorities to the effect that the court, at any time during the term at which a judgment is rendered, or at a subsequent term to which the case may be carried over by the continuance of a motion for new trial, may vacate or modify such judgment.

It is unnecessary to determine whether an order of the county court reducing the assessment of the defendant's property after the circuit court had rendered judgment upon it may authorize a vacation of the judgment. For the purpose of this case we may concede that the trial court, at the time the motion to vacate the submission was filed, had power to set aside its judgment and render any judgment on the facts as they appeared then to the court. The trial court, however, did not choose to set aside this judgment, but allowed it to stand. We are pointed to no authority which authorizes this court to interfere with the exercise of such discretion by the trial court, and we are unable to hold that it was error on the part of the trial court to refuse to set aside its judgment on account of any matter arising after judgment was rendered. Plainly, the defendant, after judgment and while before the county court, was in position to effect a compromise of the judgment rendered. That was the effect of the order which he claims the county court made in reducing his assessment. In the first place, he failed to carry his case involving the excessive assessment to proper authorities, or to do anything about it until after judgment was rendered upon it in the circuit court. If the county court had authority to reduce the assessment it had the same authority to compromise his judgment.

The judgment is affirmed. All concur.