64 Mo. App. 425 | Mo. Ct. App. | 1896
The plaintiff’s cause of action is stated in two counts. In the first he seeks to recover on a special tax bill issued by the municipal authorities of the city of St. Louis for' repairs on a sidewalk in front
In the second count it is averred that the street commissioner ordered the plaintiff to reconstruct the sidewalk, which he did, and that the tax bill was issued for the work done under this alleged order. The answer is a general denial. The cause was submitted to the court without a jury, and the judgment was for the defendants. No instructions were asked or given. The plaintiff appeals, claiming that the judgment is against all of the evidence in the case.
The right of the city by ordinance to establish, open, and otherwise improve, all streets, alleys, and sidewalks (sec. 26, art. 3, of charter; R. S. 1889, p. 2096), and under certain limitations to charge upon the adjoining property the cost of paving the streets and constructing the sidewalks (sec. 18, art. 6, charter; R. S. 1889, p. 2123), is undenied. By section 18, supra, the cost of repairing sidewalks is likewise chargeable against the adjoining property. It has been held
On the trial the plaintiff read in evidence a notice, which was addressed to defendant Rammelkamp and was signed by the street commissioner, notifying him that the sidewalk was out of repair and requiring him to-repair it within five days. This notice was in pursuance of section 578 of the Revised Ordinances, 1892, by which the owners of property are given the option of making repairs on sidewalks, provided they do the work within five days after receiving notice. The plaintiff also read in evidence his contract with the city, and also the tax bill in which the defendant, David W. Crockett, alone was named as owner of the lot. It was conceded that defendant Rammelkamp held the legal title to the lot in trust for himself and his codefendants. This was all the evidence introduced by plaintiff. Upon offer of the defendants to prove that the sidewalk was reconstructed and not repaired, the plaintiff admitted the fact in open court.
It will be observed that the plaintiff in his pleadings and evidence relied on the tax bill as making for him & prima facie case. This could only have been as to Crockett, who alone was named in the tax bill as owner. The failure to name the other owners did not invalidate the tax bill as a lien on the lot, but it did not establish a prima facie liability as to them. Stadler v. Roth, 59 Mo. 400. Hence, there was a failure of proof on both counts as to all of the defendants except Crockett.
The tax bill purports to have been issued for repairs, and, there being no controversy as to its execu
Could the plaintiff recover against Crockett under the second count, is the remaining question. The difference between reconstruction and repairs of sidewalks is marked. In the one new material is used, a different kind may be contemplated or required, and changes in the structure of the old sidewalk may also be involved. In the other, the same kind of material as that of which the sidewalk is composed must be used, and the structure of the sidewalk must not be changed in any material manner. Both may be done on the order of the street commissioner (sec. 15, art. 6, of the charter) , but reconstruction work can be done only by the annual contractor, whereas the owner has the option of making repairs (sec. 573, supra). Again,’ in cases involving the reconstruction of sidewalks, it is necessary that the width and grade of the sidewalk, as well as the kind of material to be used, should be fixed either by general or special ordinance. As the tax bill purports on its face to have been issued for repairs, it could not possibly furnish any evidence that the plaintiff was ordered to reconstruct the sidewalk, and that its dimensions and the materials to be used had been established by ordinance, and that plaintiff had complied therewith. Hence, the judgment as to Crockett on the second count was likewise unavoidable.
With the concurrence of the other judges, the judgment of the circuit court will be affirmed. It is so ordered.