Parker-Washington Co. v. Cole

REYNOLDS, P. J. (after stating the facts). — It is urged by counsel for appellant that where a fact is admitted at the trial and the case is submitted to the court by both parties on that theory, no party will be allowed to advance upon appeal a different theory as to the facts admitted, and many cases, from Bray’s Admr. v. Seligman’s Admr., 75 Mo. 31, to Matousek v. Catholic Union, 192 Mo. 588, are cited in support of this proposition. There can be no question but that this rule is recognized by our courts as a correct rule of practice. Counsel claim the admission of cotenancy on the part of John J. Cole as arising on the remarks of counsel for John J. Cole which we have quoted. We cannot agree with the view counsel takes of those remarks. They were used in argument and by way of illustration, and cannot fairly be said to be such an admission as to deprive a party of any right he may have in a case. [535] Furthermore, even admitting that John J. Cole was a cotenant, in the view which we take of the case, it' does not alter the situation. It is further claimed that evidence admitted subject to objection, is admitted unless there is a later ruling excluding it, and it is claimed that because the taxbills were admitted subject to the objection and that the court made no further ruling on the objection, that they are therefore to be considered as in evidence. We cannot accede to this proposition. The court most certainly did not admit them as evidence, but- specifically announced that he would consider the objection to them when he considered the case, and his decision in the case most clearly shows that he sustained the objection and did not consider the taxbills as having made out a prima-facie case against John J. Cole. Even admitting they were evidence it was still open to the court to pass on their legal effect and probative force, as the judgment rendered unmistakably shows he did. Parties have a right to have objections passed on when made, but if they desire to stand on that right they must preserve it by proper exception. It it further argued that the unpaid taxbills are prima-facie evidence that they have never been paid, Jaicks v. Merrill, 201 Mo. 91, l. c. 103, being cited in support of this. The citation hardly meets the proposition to which counsel cite it: namely, that it is primafacie evidence against everybody. It is prima-facie evidence against all those named in it; not against those not named. In the Jaicks case the point was as to whether it was prima facie made out that certain installments had not been paid when the suit was brought, the proof being that the first installment had not been paid, suit being thereupon brought on the whole taxbill, the ordinance providing that when any installment has not been paid when due that all subsequent ones shall be held to have matured and that action can thereupon be brought on them although not due on the [536] date of the suit. But all the parties defendant were named in the taxbill. That is not this case. Another proposition made is, that the taxbills are prima-facie evidence that the ground upon which the work was done is a public street. That is granted. [See Seibert v. Allen, 61 Mo. 482.] The final proposition and most material one is, that where one is a part owner and is not named in the taxbill, the latter is evidence against him of all the facts except as to his liability, and when his interest is admitted and he is a party to the suit to enforce the bill and offers no defense whatever, there should be a judgment enforcing the tax lien. We have disposed of the proposition made, that respondent’s interest was admitted. Even if it was, that Avas no admission that he was named in the taxbills. The only case cited in support of the proposition that all parties defendant need not be named in the taxbill to make it primafacie evidence against all is Vieths v. Planet P. and F. Co., 64 Mo. App. 207, l. c. 210. An examination of that case does not sustain the proposition. The taxbill there before the court was originally issued against a lot, naming the Planet Property and Financial Company alone as owner. It was subsequently amended by the addition of the names of the other defendants as owners. As thus amended, it was re-executed by the president of the board and the comptroller and re-registered in their respective offices, and the action was on the amended bill. The'point in contention in that case was over the action of the special tax clerk in adding these names. The court held the contention untenable on the ground that until the city officials had issued a regular and complete taxbill, the right of amendment within the period of limitation remained to them, regardless as to whether the taxbill originally issued was void or voidable, or merely imperfect in some respect. The court, after citing authorities in support of this, holds that the trial court was right in deciding that the plaintiff [537] had. made out a prima-facie case against all of the defendants named in it by offering in evidence the tax-bills thus amended. The taxbills as amended included the names of all the defendants. In the case at bar, the defendant John J. Cole was not named in the tax-bill and under the sections of the city charter and ordinances relied on and under which these taxbills are issued, they were not prima-facie evidence against John J. Cole. In Kefferstein v. Knox, 56 Mo. 186, it is specifically and distinctly decided that a special taxbill is not primafacie evidence against one not named therein. This decision, in this case, so far as we are informed, has never been overruled or questioned. We are cited to no case and have found none ourselves in which it has been held that a taxbill such as that here relied upon, is prima-facie evidence against one not named in it. In this view of the case, it is not necessary to pass upon the proposition as to the omission to name the place of payment by endorsement upon the taxbills, and upon that proposition we express no opinion. The judgment is affirmed. All concur.