In this case the appellee, Murphy, presented to and filed Avith the appellant, at its June term, 1883, his claim or complaint, Avherein he alleged that theretofore, on the ■ — ■ day of-, 1878, the then auditor of Henry county, by order of the appellant, made an additional assessment of the rights^ credits and property of the appellee, and placed the same on the tax-duplicate of such county for the year 1878, as folloAvs, to Avit:
For 1872, on $4,000 personalty, a tax of. . . $60 72
For 1873, “ ■ 4,000 “ “ ... 59 13
For 1874, « 5,000 “ “ ... 61 49
For 1875, “ 5,000 “ “ ... '55 44
For 1876, « 2,000 « “ ... 19 60
For 1877, “ 2,000 “ “ ... 16 80
Making the total taxes thus assessed and placed upon the tax-duplicate against the appellee amount to the sum of $273.18; that the appellant ordered and directed such tax-duplicate to be placed in the hands of the treasurer of such county for ■collection, and ordered such treasurer to proceed at once to collеct the taxes so assessed against the appellee; that the county treasurer did proceed and undertake to collect such taxes, and threatened and was about to levy upon and take the appellee’s property to make such taxes; and that the appellee was compelled to and did pay the county treasurer, under protest, on February 23d, 1878, in order to save his property from such levy and sale, the amount of the taxes so assessed as аforesaid, to-Avit, the sum of $273.18, and caused such treasurer to indorse upon the receipt for such taxes, that the same were paid under protest.
And the .appellee averred that the appellant’s order requiring the county auditor to enter the taxes so assessed by him against the appellee, upon the tаx-duplicate, was illegal, null and void; that the county auditor had no legal right or authority to make such additional assessment of taxes against the appellee, or to enter the same upon such tax-duplicate;
The appellant refused to allow appellee the sum demanded, or any part thereof.
Thereupon the appellee duly appealed from the appellant’s decision to the court below. There the appellant answered in two paragraphs, as follows : 1. A general denial of the complaint; and, 2. That appellee’s cause of action did not accrue within six years before the commencement of this suit. The appеllee replied by a general denial to the second paragraph of answer. The issues joined were tried by the court, and a finding was made for the apрellee in the sum of $364.68, and judgment was rendered accordingly.
In this court the appellant has assigned errors as follows:
1. The court erred in overruling its motion for a new trial; and,
2. The appellee’s claim or complaint dоes not state facts sufficient to constitute a cause of action.
In the natural order of things, the second alleged error is first entitled to our consideratiоn, for if the appellee’s complaint, challenged as it is for the first time in this court, does not state facts sufficient to constitute a cause of action, it is сertain that no valid judgment could be rendered thereon.. It is clear, from the averments of his complaint, that the appellee has endeavored to stаte a case which would entitle him to the relief provided in section 5813, R. S. 1881, in force since July 24th, 1853. In that section, as applicable to the case in hand, it is provided that where any person shall appear before the board of commissioners of any county and establish, by proper proof, that such person hаs paid any amount of
It may be conceded that the county auditor was not authorized, by any statute in force at the time, to make and enter upon the tax-duplicate the assessment of taxеs against the appellee set out in his complaint. If this were a suit to vacate such assessment and to enjoin the collection of such taxes, we would bе bound to hold, as we have held heretofore, that the assessment was not authorized by law, and that the collection of the taxes ought to be enjoined. Stockman v. Robbins,
Every word of this quotation, from the case last cited, is forcibly apрlicable to the case in hand. In the complaint we are now considering, there is not a fact alleged tending even to show that the appellee was not the owner of all the property mentioned in the special assessment, or that such property was not justly chargeable with all the taxes therein assеssed upon it against him. But appellee’s whole cause of action, as stated in his complaint, rests upon the naked allegation that the county auditor hаd no legal right or authority to make such special assessment. Certainly, the appellee has nowhere stated in his complaint any such facts as show, or tend to show, that the taxes, which he paid and asks to have refunded, were “ wrongfully assessed ” against him, within the meaning of the statute. It is true that in presenting a claim or complaint in the commissioners’ court, no particular form is necessary. Board, etc., v. Ritter,
We conclude, therefore, that the appellee’s complaint does not state facts sufficient to constitute a cause of action, or to sustain the judgment of the trial court.
The judgment is reversed, with costs, and the cause is remanded for further proceedings, etc.