50 Mo. App. 594 | Mo. Ct. App. | 1892
— The appeal in this case presents for our decision but a single question, and that is as to the propriety of the action of the trial court in rejecting the plaintiff's offer to introduce in evidence the three special tax bills counted on in his third amended petition. The ground of objection to these tax bills was, that they were void on their face. They were issued under the provisions of the charter and ordinances of the city of Sedalia, sections 15, 23, 24, 31 (Acts, 1873, p. 364, and secs. 4 and 7, Acts, 1875, p. 274), and were made prima facie evidence that the work and material charged in such bills have been furnished, of the execution of the work, the rates or prices, amount thereof and of the liability of the persons therein named as the owner of the land charged with such bill to pay the same. They recite, first, the passage of an ordinance requiring that a certain section of Second street be graded and macadamized by letting the work and contract therefor; second, that the said grading and macadamizing be done at the expense of the owners of real estate abutting upon said designated part of said street, and that the charges for such work should be a special tax against said real estate in proportion to its frontage on said part of the street; third, that the work was duly awarded under the ordinance to Russell at a certain price per lineal foot; fourth, that said contractor did grade and macadamize said part of said street and furnish all material therefor, and that the city, through the city engineer, approved and accepted the said grading and macadamizing; fifth, that Fraker, city register, on the completion and acceptance of said grading and
It is further recited in said tax bill that:
“ Whereas, said special tax bill so issued by me is erroneous, in that it recites a joint assessment on all of said lots therein named ‘and described and is a joint tax bill against all of said lots, when the assessment in fact was against each lot separately for the amount properly chargeable to it, and there should have been separate tax bills issued against each lot, and the same may be defective in some other particulars, now, therefore, I, R. M. Eraker, formerly city register of the city of Sedalia, Missouri, during the year 1881, for the purpose of amending and correcting the aforesaid tax "bill, do hereby certify each and every part of the premises and that I did on the said tenth day of September, 1881,*599 and do now, as of and for said date, apportion to and assess and levy against said lot, number seven (7) in block 39, of the original plat of the city of Sedalia, Pettis county, Missouri, in favor of said William Russell, the sum of $65.47 1-3, as the pro rata share of the costs of said work done and improvement made on said section of Second street, chargeable to said above-described lot number 7, and according to its frontage of forty-four and one-sixth feet on said section of said street, and do now as, of and for said date assess, levy and charge the said sum against said Mary H. Stewart, as the owner of said lot of ground, and do now make, issue and certify this as an amendment and corrected special tax bill against the above-described lot and against the said Mary H. Stewart, as the owner thereof, and for the sum of $65.47 1-3, the pro rata share of the costs of said work and materials and improvement on said section of said street, chargeable to said lot of ground on said June 10, 1881. And I further certify that not now being in office I have not the control or custody of, and cannot use, the seal of the city of Sedalia.
“In testimóny whereof, I have hereunto set my hand and affixed my private seal, this seventeenth day of October, 1890.
“[Seal] R. M. Eraker,
“Late City Register of Sedalia.”
The other two of said tax bills were identical with the foregoing, except as to the lot described in each.
The defendant insists, in support of the action of the trial court, of which plaintiff complains, that said tax bills are void, for the reason that the original tax bill therein recited in hcec verba, being against three lots, is void, and not the subject of amendment. It is not disputed that the work for which the tax bills were issued was done under a valid
The tax hills in question contain every essential recital required by law to render them valid. Galbreath v. Newton, 30 Mo. App. 380. It is true the original void tax hill is recited therein. This was, no doubt, done by the register for the purpose of showing the reason why the new bills were issued. He might have canceled the first bill, and have then issued new ones, without reference therein to the issue and cancellation of the first. But no reason is perceived why the incorporation of the original tax bill in the new ones, and the recitals therein made in respect to the former, should have the effect to invalidate the latter. It seems to us whether the new tax bills issued in lieu of the first one be • regarded as original or amended, is of no consequence. It further seems to us the issue of the tax bills counted on was but the tardy performance of a
The contention, that, the suit having first been brought on the void tax bill in one count, the plaintiff could not amend by changing his suit into three counts on three several tax bills, does not properly arise on the appeal; but, if so, no motion was made to strike out the amendment, nor objection offered to the introduction of evidence on that account. But, on the contrary, the defendants filed their answer thereto and proceeded to trial, and now here, for the first time, interpose the objection just mentioned. The allegations of the amendment are quite similar to those of the original petition, and, therefore, it is too late for the defendants to raise the question that the plaintiff’s second amended petition has changed the cause of action from what it was in the original petition. Spurlock v. Railroad, 104 Mo. 658; Stearns v. Railroad, 94 Mo. 322.
It follows that the judgment must be reversed, and the cause remanded, to be proceeded with in conformity with the law as it has been declared in the foregoing opinion.
