Reis v. Epperson

143 Mo. App. 90 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts).— While by the answer in the case the defendants denied each and very allegation contained in the petition, they followed it with the clause, “unless hereinafter admitted.” We are of the opinion that the allegations in the answer following this qualified denial, in effect, admitted the levying of the assessment for the improvements and relied upon the claim that by outside agreements between plaintiff and defendants these assessments were excluded from the warranty and were assumed and were to be paid by the plaintiff; either that, or in one part of the answer defendants have denied and in the other admitted the assessment and claimed that they were absolved from a breach of the warranty of non-payment because plaintiff had himself assumed their payment. In point of fact, that is the issue upon which the case was presented to the jury by counsel for each of the parties. The very instruction asked by defendants and given by the court at their instance carries with it the idea that these taxes and assessments for street improvements had been made and were a burthen or lien upon the property. Apart from that, however, it was expressly stipulated that the judgment of the county court of St. Clair county, Illinois, was to be treated exactly as if it was the judgment of one of our own courts. The statute of Illinois introduced in evidence showed that not only was the county court a court of record, generally, but so far as this class of cases is concerned, was a court of original jurisdiction. However inferior a tribunal it may be, according to the well-settled rules of decision in our courts, when a court, even of limited jurisdiction, is acting within the, limit of that jurisdiction, its recitals are at least prima facie evidence of the facts there set out. In point of fact, many of our decisions go much further than that and tend to uphold the recitals of jurisdictional matters by courts of inferior jurisdiction in cases within that jursdiction as conclusive of the truth of those recitals. In either view of the case, therefore, no error was committed in the reception in evidence of this record of the county court of St. Clair county, Illinois, and its recitals of the fact of service comply with the requirements in such cases, as was proven by the statute of Illinois, and are at least prima facie evidence that the defendants • here were duly served and their property before that court for adjudication in this matter. If from the return of process or proof of service by posting or publication, defendants desired to overturn those recitals, assuming for this case that that coulcl be done, it' was for them to have introduced evidence to that effect. They failed to do this and are bound by the recitals of the record in evidence.

There was no error in giving the instruction which the court gave at the instance of plaintiff. The instruction given at the instance of the defendants fairly put the contention of defendants to the jury, on the issues that had been tried before it, and defendants have no cause whatever to complain of that instruction as not properly presenting the issues and the evidence from their side of the case. The instruction as to the preponderance of the evidence and as to where the bur-then lay on the issue of the assumption outside of the deed, of payment of this special assessment, was properly refused, and that being properly refused the instruction defining “burthen of proof” and “weight of' evidence,” of course, should not have been given. The learned counsel for defendants in this case have ignored or lost sight of the fact that this matter of payment .or of assumption outside of the warranty of the deed was their affirmative defense — was the affirmative defense of the defendants. Hence the burthen of proof of that was with the defendants and the court very properly refused the instruction. Support is sought to be given to the argument for these instructions as to the burden of proof on the fact that plaintiff had the opening and closing of the case. That is always the rule, so long as any part of plaintiff’s case is in issue. The injection into the case by the defendants of an affirmative defense does not change the rule. The rule is changed only when plaintiff’s Avhole case, is admitted and the defense by neAV matter in avoidance or the like, undertakes to meet the admitted case. That was not the situation here.

The weight to be given to the testimony of the different witnesses was a matter for the exclusive determination of the jury, and their verdict is conclusive on that matter, there being no error of law in the trial or instructions. Finding no error, the judgment of the circuit court is affirmed.

All concur.