Dickson v. Rouse

80 Mo. 224 | Mo. | 1883

Lead Opinion

Martin, C.

This was a suit before a justice of the peace to recover the value of a three-horse breaking plow, a two-horse cultivator and a double-hinged harrow alleged to have been wrongfully taken by defendant. The suit was dismissed by the justice for want of jurisdiction. On appeal to the Hannibal court of common pleas the case was tried by the court without the intervention of a jury. The defendant admitted the taking and carrying away of the property. He then proved that he was the collector of Levee township, Pike county, Illinois, and that in his capacity as such he seized the property in question in said township under and by virtue of the collector’s tax-books of said township, and a warrant thereto annexed, commanding him to collect the personal tax appearing in said tax-books against plaintiff; that in pursuance with said authority the property sued for was seized and sold, and the proceeds- applied to the payment of the tax.

It was objected at the trial that the tax-book given in evidence did not contain upon its face a descriptive list of the personal property upon which the tax was claimed, and that the book which constituted a part of his authority was for this reason not in conformity with the statute of Illinois, and, therefore, no justification for the levy. It was claimed by plaintiff’ that the collcctox-’s book should contain an enumeration or list of the different kinds of personal property possessed by the tax-payer as fully as given into the assesssor by the tax-payer, and that the statement of the aggregate amount or value was not sufficient. In this case the statement was of an aggregate sum or value, and was not a statement of kind or quality in detail. The learned judge deciding the case seems to have given *227it a very deliberate investigation, which is evidenced by a written opinion copied into the record. The conclusion reached by him was that the books, by reason of the defect objected to, did not conform with the requirements of the statutes of Illinois, and that the defendant was without authority or justification in making the seizure. I am unable to agree with the learned judge in this conclusion. There was nothing in the books to show that the property so assessed and certified to the collector was illegally assessed, or that the tax or its valuation was not authorized by law. If it be true that the statute required the books to show the property of the tax-payer in detail, and the officers whose duty it was to make out and certify the books had departed from this- direction, and entered the property in one aggregate sum or valuation, this, I think, would be only an irregularity which could not avoid the tax-book as a warrant of authority in the hands of the collector. It was, nevertheless, the genuine act of the officers who had full authority to make out and certify the books of warrant and seizure. It was a matter of which they had jurisdiction, and an irregularity of this character in the performance of that duty could not leave the collector without any authority of law. If his warrant of authority comes from the parties having jurisdiction to make and give it, he is protected by it, notwithstanding any irregularities or infor-malities appearing on the face of the assessor’s or collector’s books. Brown v. Harris, 52 Mo. 306 ; Rubey v. Shain, 54 Mo. 207.

I do not wish to be understood as holding that the statutes of Illinois require the statement in detail of the tax-payer’s personalty to be extended in the assessor’s or collector’s books, as maintained by plaintiff and decided by the court below. I have examined the statute cited by counsel, and am satisfied that an extension in the total or sum aggregate, is all that is required.

It was objected by plaintiff’ that the warrant itself was addressed to "William G-atts, collector of the township, in*228stead of to the defendant as such collector. W illiam Gatts bad been elected collector, bad taken tbe oatb of office, but having failed to complete bis qualification by furnishing the required bond, tbe defendant was appointed in bis place. Tbe tax-books and warrant bad never been delivered to Gatts. Upon tbe defendant’s accession to tbe office they were delivered to him. Tbe learned judge deciding tbe case below held that tbe words “ "William Gatts ” might be treated as surplusage, inasmuch as the law did not require tbe name of tbe collector to be inserted in tbe warrant at all. I am satisfied that tbe warrant was not void by reason of this irregularity. Tbe books and warrant were delivered to defendant and constituted the first and only issue and delivery of them. Tbe defendant was collector at the time of receiving them, and be answered tbe address of tbe warrant sufficiently to be within its protection. Wilson v. Seavey, 38 Vt. 221.

As tbe evidence constituting tbe defendant’s defense against tbe charge of trespass was of a documentary and legal character, and in all material matters of fact was not contradicted, I think be ought to be relieved from another trial in a foreign jurisdiction, by entry in bis favor of the judgment which should have been entered at tbe trial. Accordingly tbe judgment is reversed and tbe cause remanded, and tbe court is directed to enter judgment for defendant.

All concur.



Dissenting Opinion

Sherwood, J.

If the above is to be considered as indorsing tbe case of Rubey v. Shain, I am to be marked as dissenting, and refer to my individual opinion in the case of Town of Warrensburg v. Miller, 17 Mo. 61.