Turner v. Burns

Missouri Court of Appeals

Turner v. Burns

42 Mo. App. 94, 1890 Mo. App. LEXIS 343

CourtMissouri Court of Appeals

DecidedNovember 10, 1890

StatusPublished

Cited by7 cases

This text of 42 Mo. App. 94 (Turner v. Burns) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Turner v. Burns, 42 Mo. App. 94, 1890 Mo. App. LEXIS 343 (Mo. Ct. App. 1890).

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Opinion

Ellison, J.

This suit,is based on a special tax bill. The question is, which limitation applies; the five or ten-year statute % If ten years, the action was not barred ; if five, it was.

An action on a special tax bill necessarily depends upon the provision of a statute for its support. ■ The liability imposed by such bill is evidently “a liability created by statute,” and as such falls within the letter of section 3230, Revised Statutes, 1879, now seption 6775, Revised Statutes, 1889. And this was the opinion of the supreme court in City of St. Louis v. Newman, 45 Mo. 138. A case cited in that opinion has since been overruled, but the point here has not been questioned.

II. Plaintiff, however, contends that he commenced this action within five years. The facts are that he deposited the tax bill with the justice before the five years’ limitation had run, but the process was not delivered to the constable until after it had expired. This point is likewise determined by the letter of the statute. Section 2849, Revised Statutes, 1879, section 6136, Revised Statutes,- 1889, wherein it is enacted that if suit be instituted by process it should be deemed to have been commenced “ upon delivery of the writ to the constable to be served, and he shall note thereon the time of receiving the same.”

The argument and authorities in plaintiff’s brief are not deemed applicable to the position taken by respondent and herein sustained. The judgment is affirmed.

All concur.

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Ellison, J.

This suit,is based on a special tax bill. The question is, which limitation applies; the five or ten-year statute % If ten years, the action was not barred ; if five, it was.

An action on a special tax bill necessarily depends upon the provision of a statute for its support. ■ The liability imposed by such bill is evidently “a liability created by statute,” and as such falls within the letter of section 3230, Revised Statutes, 1879, now seption 6775, Revised Statutes, 1889. And this was the opinion of the supreme court in City of St. Louis v. Newman, 45 Mo. 138. A case cited in that opinion has since been overruled, but the point here has not been questioned.

II. Plaintiff, however, contends that he commenced this action within five years. The facts are that he deposited the tax bill with the justice before the five years’ limitation had run, but the process was not delivered to the constable until after it had expired. This point is likewise determined by the letter of the statute. Section 2849, Revised Statutes, 1879, section 6136, Revised Statutes,- 1889, wherein it is enacted that if suit be instituted by process it should be deemed to have been commenced “ upon delivery of the writ to the constable to be served, and he shall note thereon the time of receiving the same.”

The argument and authorities in plaintiff’s brief are not deemed applicable to the position taken by respondent and herein sustained. The judgment is affirmed.

All concur.

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Bluebook (online)

42 Mo. App. 94, 1890 Mo. App. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-burns-moctapp-1890.

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