City of St. Louis v. Armstrong

Lovelace, Judge, delivered the opinion of the court. This is an action to recover a special tax bill assessed against the defendant by the city engineer, under the provisions of an act of the Legislature of the State of Missouri, approved January 16,1860 — Sess. Acts 1859-60, p. 382. The first objection made by the defendant is that the tax certificate of the engineer was not proven ; but, upon examining the evidence, it appears that the engineer himself testifies that he signed the certificate as engineer. The second objection is to the first instruction given by the court in behalf of the plaintiffs. The court instructed the jury, that “the special tax bill offered in evidence is prima facie evidence of the plaintiffs’ right to recover, and the amount that they ought to recover; and the onus lies upon the defendant to show by evidence that he is not liable, or that the plaintiffs should recover a portion only of the amount claimed.” This instruction goes no further than the act on which it is based, and is in accordance with the construction of that act heretofore given by this court—St. Louis to use Carroll v. Hardy, 35 Mo. 261; City of St. Louis to use Lohrum v. Coons, 37 Mo. 44. With regard to the third and last ground -of error complained of, to-wit, the rule of damages laid down, we are unable to see that the defendant wa!s particularly injured by it. In the absence of any proof on the subject, the presumption would be that the certificate issued, and was delivered to the plaintiffs, on the day of its date ; and we cannot see how the court’s assuming that fact could greatly prejudice the defendant. The judgment is affirmed; the other judges concurring."