State ex rel. Malin v. Merriam
60 S.W. 1112
Mo.
1901
Check Treatment
MARSHALL, I.

This is a suit to collect back taxes *658alleged to have been levied and assessed upon thirty-six different tracts of land in various townships and ranges in Ozark county, of which the defendants are alleged tо be the owners, which taxes are averred to be one hundred and fifty-three dollars and sixty-four cents “for interest and sinking fund tax for the year 1895,” and one hundred and forty-six dollars and fifty-seven cents for the same purpose for the year 1896, and judgment is prayed for this amount, with interest and costs. The petition alleges that the lands were rеturned delinquent by the collector and that the county clerk made out and delivered to the collector a back-tax book as provided by law, and that the lands described in the back-tax book remain unredeemed and the taxes unpaid.

The answer is a general denial, with an admission that the defendants own the land.

The transcript in the case before this court consists of the petition; a paper consisting of eight pages and purporting to be a certificate that the back-taxes on the property remain delinquent; the.answer'; a stipulation signed by the attorneys and filed in the cause, as follows: “It is hereby stipulated and agreed that the taxes on which this suit is based were levied for the purpose of creating a sinking fund for the payment of certain bonded indebtedness of Ozark county, Mo., issued in .August, 1889, and an interest fund for the payment of the interest thereon, and said taxes constitute no part of the taxes levied for ordinary county exрenses; that the county court of Ozark county did not prior to the levy of said taxes for either year, through the county attorney, or otherwise, ask for or reсeive from the circuit judge of the Twentieth judicial circuit, an order authorizing the levy of said taxes or any part thereof;” ■and the judgment, as follows: “Now on this day this cause coming on to be heard, the parties appear and announce ready for trial, and all and singular the matters in issue being submitted to and by the court sеen, and the court, after hearing the *659evidence, finds that the taxes for which this suit is brought are illegal and void and that plaintiff is not entitled to recover herein. It is therefore considered and adjudged that the lien for said taxes be ‍​‌​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌‌‌‌‌‌​​​​​​‌​​‌‌​​‌​​​​‌‌‍set aside and for naught held and esteemed [description of land omitted]. It is further considered and adjudged that the plaintiff take nоthing by its suit and that defendants recover their costs.”

There was no bill of exceptions or motion for new trial filed, and no appeal taken, but the matter remained in this shape from the date of the judgment on August 12, 1897 until May 3, 1898, when this writ of error was sued out.

I.

It is: contended by plaintiff that the stipulation, herein set out, constitutes an agreed case or agreed statement of the case, and occupies the same footing as, and stands in lieu of, a special verdict; that it stands precisеly as if a jury had found a verdict in that form; and that when filed it became a part of the record proper, and hence no bill of exceptions was necessary to make it a part .of the record, and that as it is a part of the record proper no motion for a new trial was necessary, but that it is the duty оf this court to examine'the’case so made, and if error is apparent on the face of the record proper, so constituted, to reverse the judgment below, and enter such judgment as the trial court ought to have entered.

It is manifest that this is not an agreed case within the meaning of section 793, Revised Statutеs 1899, which authorizes parties to a question of difference, without action, to agrqe • upon a case containing the facts upon which the controvеrsy depends, and submit the same to a court of competent jurisdiction 'for decision. Eor such an agreed case is “without action,” which means without filing a suit, having summоns issued and the defendant brought into court against his will, followed by .the usual steps in a suit.

*660It is clearly a suit regularly begun, issues made up, and to save the trouble of introducing testimоny to support all or any of the questions at issue, the parties stipulate as to the existence ‍​‌​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌‌‌‌‌‌​​​​​​‌​​‌‌​​‌​​​​‌‌‍or non-existence of the facts in issue. Such a stipulatiоn is commonly called an agreed statement of facts, and does not constitute an agreed case under the statute or a.t common law.

The primаry question in this case is whether such an agreed statement of facts becomes a part of the record proper by being filed with the clerk of the trial сourt, or whether it constitutes matters of exception which can only be made a part of the record by a bill of exceptions.

The exact question was decided by this court in Kennerly v. Merry, 11 Mo. 214, and Napton, J., disposed of the matter very briefly as follows: “This is a petition for dower in a lot in St. Louis. There is no bill of exceptions in the case, and no motion for a new trial. A statement of facts agreed on by the counsel is copied by the clerk in the record,, but it is not made a part of the record by bill of exceptions. The judgment will therefore be -affirmed.” Thus as early as 1811 it was distinctly held that “a statement of facts agreed on by counsel” and “copied by the clerk in the record” is not a párt of the record unless made so by a bill of exceptions. Such is the exact condition in this case. The decision cited has never been overruled. Many times since it has been said that such an agreed statement dispenses with proof of the facts therein stated. [St. Charles v. Hackman, 133 Mo. 634.] No declarations of law are necessary to secure a review of the case, but upon the agreed facts this court will ‍​‌​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌‌‌‌‌‌​​​​​​‌​​‌‌​​‌​​​​‌‌‍аpply the true law and enter such a judgment as the trial court ought to have entered. [St. Charles v. Hackman, 133 Mo. 634; Carr v. Lewis Coal Co., 96 Mo. 149; Gage v. Gates, 62 Mo. 412.] It has also been held that such an agreed statement of facts “occupies the same footing and stands in lieu of a special *661verdict.” [Carr v. Lewis Coal Co., 96 Mo. l. c. 155; Gage v. Grates, 62 Mo. 412; Munford v. Wilson, 15 Mo. 540.] But it has never been held since Kennerly v. Merry, supra, that the rule therein stated is not still the law, nor that such an agreed statement of facts becomes a part of the record proper by simply filing it with the clerk or by having the clerk coрy it into the transcript nor that it can be made a part of the record in any other way than by a bill of exceptions. It is like any other agreement or stipulаtion of counsel and can only be made a part of the record by a bill of exceptions. [Eystra v. Capelle, 61 Mo. 578; State v. Batchelor, 15 Mo. 208.] Or like instructions which the clerk copies into a transcript, but which are ‍​‌​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌‌‌‌‌‌​​​​​​‌​​‌‌​​‌​​​​‌‌‍not made a part of the record by a bill of exceptions. [State v. Shehane, 25 Mo. 565; Thompson v. Russell, 30 Mo. 498; Sturdivant v. Watkins, 47 Mo. 177.] Or like exhibits attached to a petition which are copied into a transcript without being made a part of the record by a bill of exceptions. [State ex rel. v. Eldridge, 65 Mo. 584; Kearney v. Woodson, 4 Mo. 114.] Or like a motion for exeсution against a stockholder. [Kohn v. Lucas, 17 Mo. App. 29.]

The statement of facts agreed upon by the counsel is not a part of the record proper and has not been made a part of the record by bill of exceptions, and it can not therefore be considered by this court. This leaves only errors apparent on the face of -the record proper to be reviewed. The record proper consists of the petition, summons, and all subsequent pleadings (in this case the answer), including the verdict and judgment. [Bateson v. Clark, 37 Mo. l. c. 34; Railroad v. Carlisle, 94 Mo. l. c. 169.] The petition is in proper form, the answer is a general denial, and the judgment is that parties appeared, the court heard the evidence, and declared the taxes illegal and • void, set aside the lien for the tаxes on the land, and entered a decree that plaintiff take nothing by his suit, and that defend*662ants recover their costs. No error is apparent on the faсe of this record, and nothing in the way of exception having ‍​‌​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌‌‌‌‌‌​​​​​​‌​​‌‌​​‌​​​​‌‌‍been incorporated in the record, showing any error in the trial, the judgment of the trial court is affirmed.

All concur .