Walsh v. First National Bank, 139 Mo. App. 641

139 Mo. App. 641 | Mo. Ct. App. | 1909

Lead Opinion

COX, J. —

It is first contended by respondent that appellant has failed to comply with the rules of this court in filing abstract of the record, and insists that appellant should suffer the penalty prescribed by the rules for his neglect. Appellant admits that he has not complied strictly with our rules, but excuses himself upon the ground that this case first went to the Kansas City Court of Appeals and was transferred to this court, and that he had not noticed the difference in the rules. We shall accept the excuse and pass that point. It is next contended by respondent that there is no proper showing in the abstract of record filed by appellant that the bill of exceptions Was filed in the court below and that we should .disregard it here. Appellant’s- abstract of the record recites in narrative form that the court made an order of record allowing defendant until and including the first day of the next term of court in which to prepare and file bill of exceptions, and that appellant, within the' time prescribed by the court, filed its bill of exceptions, duly signed by the judge of said court and said bill of exceptions became a part of the reco'rd in said cause, which said bill of exceptions is as follows:

Then follows the bill of exceptions.

We think this was sufficient and are sustained in this view by the following cases: Stewart v. Patten, 65 Mo. App. 21; McDonald & Co. v. Hoover, 142 Mo. l. c. 493.

The cases cited by respondent, Williams v. Harris, 110 Mo. App. 538, and other cases, are all cases in which the abstract of the record filed by appellant did not recite the filing of the bill of exceptions, and the only evidence that it was filed was found in the bill itself. This was held to not be sufficient, but they, in no way, conflict with our position in this case.

There is an allegation in the petition that defendant is now the owner of the taxbills. The answer is a general denial, and it is now contended by respondent that the general denial does not put in issue the ownership of the taxbills, but that this issue can only be raised by special plea. The general denial puts in issue every fact which the plaintiff must prove to make out a prima facie case. [Musser v. Adler, 86 Mo. l. c. 449; Sprague v. Rooney, 104 Mo. l. c. 360.]

Under this state of pleadings had there been no evidence as to the ownership of the taxbills could a judgment for plaintiff be upheld? We think not, and shall rule that point against respondent. We next consider whether the proofs sustain the allegation of ownership in defendant, and on the naked question of ownership we should say that it does not. A fair construction of all the testimony upon that question can result in but one conclusion, viz. — that the taxbills were the property of the Shenandoah Bank, of Shenandoah, Iowa, and had been sent to defendant for collection only, with no authority to sue or, in any way, force collection. It does not, however, necessarily follow that plaintiff’s cause of action must fail for that reason for there was evidence in this case from which the trial court might find that the Shenandoah Bank, who was the owner of the taxbills, really conducted the defense in this trial, and, if that be true then it has had its day in court, and will be bound by the judgment, though not a party to the record. [Strong v. The Phenix Insurance Co., 62 Mo. 289; Wood v. Ensel, 63 Mo. 193.]

We now come to the question of the validity of the taxbills. The first objection is that the ordinances under which the work was done are “vague, indefinite, unreasonable, oppressive” — mere conclusions. The vagueness and indefinitness should be pointed out by showing what essential had been omitted. The facts which render them unreasonable or oppressive should be stated. There was, moreover, no evidence to sustain either of these allegations and they must fall.

The next objection is that no notice was given by which persons desiring to bid upon the construction of the sewer could do so intelligently.

The city ordinance No. 239 provides that unless the ordinance for causing the district sewer to be constructed shall otherwise provide, the clerk shall advertise for sealed bids in the newspaper doing- the city printing for at least ten days. The ordinance for construction of this sewer did not provide for the notice, so ordinance No. 239 would apply. The evidence shows that advertisement was made in the Monett Star for sixteen days. No objection is made to the form of the notice or that it was not properly published, but it is now claimed by respondent in his brief and argument that no plans and specifications had been prepared by the city engineer, and by him filed with the city clerk for the guidance of bidders, and complaint is also made that the city council had employed Burns & McDonnell of Kansas City, Missouri, to make these plans and specifications, and, had thereby displaced the city engineer on whom the ordinances of the city and the law devolved this duty. Plaintiff’s petition does not set this up as a ground for annulling the taxbills, but the only reference in the petition as to this fact is in relation to the notice to bidders. This notice recites that “detail plans and sewer profiles” will be kept on file at the office of the city clerk, and at the office of the engineers, Kansas City, Misouri, where the contractors will have ample opportunity to secure all data, for bidding. We think the notice was sufficient.

The other objections to the validity of these taxbills are that the work was not constructed under the supervision of the city engineer or other officer of the city and that after the completion of the work no estimate of the total cost and the amount chargeable to plaintiff’s property was made. We shall consider these together. The statute does not, in terms, require the work to be done under the supervision of the city engineer or any other officer. It does require the estimate of the total cost and the apportionment thereof to the property-owners to be made by “the city engineer or other officer having charge of the work.” This ■ estimate and apportionment must be made by the proper officer in substantial compliance with the statute, for it is upon this, and this alone, that the council is authorized to levy the tax. [Weesner v. Central National Bank, 106 Mo. App. 668; Akers v. Kolkmeyer & Co., 97 Mo. App. l. c. 528.]

In this case it appears from the evidence that such an estimate and apportionment was made and signed by George Parrish, City Engineer, and Burns & McDonnell by O. T. Hardy. The council had contracted with Burns & McDonnell before tbe sewer was constructed by which, they were engaged to prepare plans and specifications, to superintend the work of construction, make profiles, and, in short, to do all that an engineer would be expected to do. We may assume that they complied with their contract but this does not prevent the estimate and apportionment signed jointly by them and the city engineer from being the act of the engineer. It was as much his act as if he had signed it alone and was sufficient authority for the levy made by the council. There was some evidence that during a portion of the time the work was in progress, the city engineer was not present, but we do not think the evidence in that respect sufficient to justify the finding that the city engineer did not by himself, or through some agent, really superintend the construction of the sewer. He signed the final estimate and apportionment in which he recites that the work had been completed in conformity to the contract and this makes it clear that he knew what had been done under the contract, and that was all that was required in that connection.

The city had agreed to pay Burns & M'cDonnell for their services five per cent of the cost of construction, and this was added to the cost, and included in the taxbills. Some lots were omitted and no taxbills issued against them. These facts are now urged as reasons for annulling these taxbills. The commission of Burns & McDonnell should not have been included and the property-owners cannot he made to pay it. The plaintiff may also be relieved of the erroneous charge for lots omitted, but these things do not render the tax-bills void. [Neenan v. Smith, 60 Mo. 292; First National Bank of Kanas City v. Arnoldia, 63 Mo. 229; Neill v. Ridge, 119 S. W. 619; Johnson v. Duer, 115 Mo. 366.]

We have carefully examined this record and find that every position taken by respondent against the validity of these taxbills is untenable. No fraud or collusion is charged or proven. The defendant is a resident property-owner of the city of Monett. He knew the work was being done and stood idly by in apparent acquiescence until the work was completed, and his property had received the benefits of it, and made no complaint, and he should not now be heard to complain of any defect which does not go to the validity of the taxbills themselves. The contractor has honestly performed his work. The law has been substantially complied with and there is no equity in plaintiff’s bill. The judgment of the lower court is therefore reversed.

All concur.

---

Rehearing

ON PETITION FOR REHEARING.

On motion for rehearing, respondents contend that one of the taxbills involved in this action was dated March 17, 1908, prior to the filing of the final estimate by the city engineer, and that this fact was overlooked by the court in rendering the opinion.

This is an appeal by the short form, and appellant’s abstract of record copies taxbill issued in District No. 2, which shows that it was issued on the 20th day of April, 1908. Then follows this statement. The other taxbills offered in evidence are the same in form excepting as to the lot described. Respondent took no exceptions to this abstract of record, and did not directly raise the point in his brief, but we find in respondent’s statement of the case an assertion that the taxbill of District No. 1 was dated in March, and, as it may be that this is true, and, since it is contended by respondent that some other questions which are not passed on in this case, were properly raised by the pleadings, we have concluded to remand this case for a new tipal, and it will be so ordered.

All concur.'