Inhabitants of Butler v. Robinson

75 Mo. 192

• Court: Supreme Court of Missouri
• Decided: October 15, 1881
• Status: Published

Opinion

Sherwood, C. J.

We are met on the threshold of this cause by two fatal defects in the proceedings instituted before the justice of the peace; The statement is defective in failing to set forth either that the lots mentioned were within the corporate limits of the town of Butler, or that the defendant was the owner of the lots. These are defects which no amount of evidence can supply. They are not mere failures in some minor particulars, which evidence^ being introduced, may remedy, but are absolute failures to state a cause of action. Neither the curative powers of our. statute of jeofails, nor the common law arising after verdict and in support thereof, apply to a statement like the present one. Weil v. Greene Co., 69 Mo. 281, and cases cited. But even if evidence could supply such omissions, nothing of this kind occurred at the trial. In no view of the case, then, can the judgment rendered be permitted to stand.

But aside from the foregoing matters, there is nothing ' m this record to show that the town of Butler had any authority to pass the ordinance whereon the plaintiffs rely to maintain their action, since the charter of the town of Butler was not introduced. Courts cannot take judicial cognizance of charters incorporating towns, as they may do of public statutes. 1 Greenleaf Ev., §§ 479, 480. It is only where an act of incorporation is declared to be a public act that courts will judicially notice it, as they will statutes of a public nature. Bowie v. Kansas City, 51 Mo. 454.

Judgment reversed and cause remanded.

All concur.