94 Mo. 544 | Mo. | 1887
This is an action for the collection of back taxes, alleged to be due the city of St. Joseph. For the most part, the taxes sought to be collected were levied for the alleged purpose of satisfying certain judgments, rendered against the city of St. Joseph, the levies being made to satisfy such judgments. The answer of the defendants was as follows : “Now come said defendants, and for amended answer to the second amended petition herein, admit that they are now, and were at the time stated in the petition, owners of the real estate therein mentioned. They aver that they did, on February 8, 1881, pay to the city of St. Joseph the general administration tax alleged by plaintiff to be due for the year 1880, on lot one, in block (40) forty, of the original town of St. Joseph, Missouri. They aver that H. C. Carter, city collector of the city of St. Joseph, is not the proper person in whose behalf this suit should be maintained, but aver that it should be prosecuted in the name of Tandy Trice, who was, when this suit was commenced, and is now, collector of Buchanan county, Missouri. They aver that all of the alleged judgments mentioned in the petition were, long prior to the institution of this suit, fully paid. They aver that none of the taxes alleged to have been levied for water-fund taxes, were levied to pay for expenses incurred by the city of St. Joseph, Missouri, for waterworks erected and maintained by it, or for payment of principal and interest of bonds, issued by the city of St. Joseph,. Missouri, to pay for the erection and maintenance of waterworks owned by the city of St. Joseph, Missouri, or in which said city, as such, had any interest whatever. They deny each and every other allegation of the second amended petition not herein admitted. And they ask to be dismissed with costs.” The reply of plaintiff was in effect a general denial.
When the trial took place the following admissions
Thereupon the plaintiff offered in evidence a tax bill attached to his petition iri evidence, it being stipulated that the other tax bills were in similar form. The tax bill +hus offered was as follows :
The defendant thereupon asked the court in writing to declare the law of the case as follows: “The court sitting as a jury declares that, under the pleadings and the evidence, this plaintiff cannot recover.” Which declaration of law the court, against plaintiff’s objection, gave, and to the action of the court, in giving said declaration of law, the plaintiff at the time excepted. The plaintiff thereupon took a non-suit with leave to move to set the same aside. Afterwards, upon motion made for that purpose, the court refused to set aside the non-suit; hence this appeal.
I. Under the provisions of Revised Statutes, sections. 6833, 6834, 6835, 6836, 6837, 6845, the collector of the city was the proper party to institute suit in the name of the state-to his use ; consequently, the position of the defendants, on the point that -the collector of the county should have brought this suit, is untenable.
II. But in order that the city collector should be
III. The judgments in question, having been rendered in suits against the city, peremptory writs of mandamus issued from the courts in which such judgments were rendered, commanding the mayor and city council to levy and collect a special tax sufficient to pay such judgments; and this action is brought to collect the amount of the taxes levied on the property of the defendants. We are of the opinion that the satisfaction of the judgments, in the way mentioned, constitutes no .bar to the present action. We hold that the payment
The judgment is reversed and the cause remanded,