| Mo. | Feb 12, 1901
This is a suit to collect back taxes
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 expenses; 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 receive 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 seen, and the court, after hearing the
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 precisely 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 of 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 Statutes 1899, which authorizes parties to a question of difference, without action, to agrqe • upon a case containing the facts upon which the controversy 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 summons issued and the defendant brought into court against his will, followed by .the usual steps in a suit.
The primary 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 court, 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" court="Mo." date_filed="1847-10-15" href="https://app.midpage.ai/document/martin-v-white-6612267?utm_source=webapp" opinion_id="6612267">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" court="Mo." date_filed="1896-03-24" href="https://app.midpage.ai/document/st-charles-v-hackman-8012102?utm_source=webapp" opinion_id="8012102">133 Mo. 634.] No declarations of law are necessary to secure a review of the case, but upon the agreed facts this court will apply the true law and enter such a judgment as the trial court ought to have entered. [St. Charles v. Hackman, 133 Mo. 634" court="Mo." date_filed="1896-03-24" href="https://app.midpage.ai/document/st-charles-v-hackman-8012102?utm_source=webapp" opinion_id="8012102">133 Mo. 634; Carr v. Lewis Coal Co., 96 Mo. 149" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/carr-v-lewis-coal-co-8009355?utm_source=webapp" opinion_id="8009355">96 Mo. 149; Gage v. Gates, 62 Mo. 412" court="Mo." date_filed="1876-05-15" href="https://app.midpage.ai/document/gage-v-gates-8005313?utm_source=webapp" opinion_id="8005313">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
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 taxes on the land, and entered a decree that plaintiff take nothing by his suit, and that defend