Lead Opinion
The following opinion was filed January 29, 1889.
We are clearly of the opinion that the learned circuit judge erred in granting any relief to the plaintiff. On the trial no proof was made by plaintiff tending to establish any of the material allegations of the com-nlaint which would entitle him to relief in a court of equity, admitting that the board of review of the town of Bayfield erred in reducing the assessment made by the assessor. There being no evidence offered tending to show that the assessment made by the assessor was in any respect unequal, it must be presumed that such assessment was a fair, just,
The rule established by this court in Mills v. Gleason, 11 Wis. 470, “that a court of equity will not interfere to declare a tax invalid and restrain its collection, unless the objections to the proceedings are such as go to the very ground-work of the tax, and necessarily affect materially its principle, and show that it must necessarily be unjust and unequal,” has been uniformly adhered to by this court; and the policy and justice of the rule, it seems to us, is unquestionable. See Hart v. Smith, 44 Wis. 213, and oases cited in the opinion on page 218. See, also, Kaehler v. Dobberpuhl, 56 Wis. 480, 483; and Fifield v. Marinette Co. 62 Wis. 532, 538-9. As the facts relied on by the circuit judge do not even tend to render the plaintiff’s taxes unequal or unjust, no case for equitable relief was made out, and his complaint should have been dismissed.
The fourth finding of fact made by the court, viz., “ that the allegations of the complaint as to the school tax in said town of Bayfield are true,” was duly excepted to by the defendant. And after a careful search of the record we can find no evidence in the case which tends to sustain such finding. If it should be urged in support of the finding that the invalidity of this school tax might have appeared upon the face of the tax roll, which was introduced in evi-
By the Oourt.— The order of the circuit court is reversed, and the cause is remanded with directions to the circuit court to dismiss the complaint.
The respondent moved for a rehearing, mainly “ for the purpose of asking the court to so modify its decision as to remit the case to the court below for further proceedings according to law, instead of dismissing the complaint.” In their brief in support of the motion counsel stated that “only so much of the evidence and record in the case was brought up as was deemed necessary for the determination of the correctness of the order appealed from. There was considerable evidence given on the trial going to the question of the validity of the taxes and tax levy, but, upon consultation, the attorneys for the parties in this action thought it unnecessary to include such evidence in the bill of exceptions. Counsel for both parties agreed that, the appeal being from the order only, the findings in respect to other issues could not be reviewed by this court, but that the other questions in the case could only be passed upon after final judgment. Single v. Stettin, 49 Wis. 645, and Kingsley v. Marathon Co. id. 649.”
Rehearing
The following opinion was filed April 25, 1889:
A motion for a rehearing has been filed in this case mainly upon the ground that the remittitur should
The learned counsel is undoubtedly correct as to the form of the remittitur upon the reversal of an order made during the proceedings in an action in the court below. The mistake made in this case was induced in part by the fact that the bill of exceptions purported to contain all the evidence given on the trial in the court below, and by the fact that the order appealed from was made by the court on the trial of the action and after the plaintiff had produced all his evidence and rested his case. Upon the record returned to this court we were very clearly of the opinion that the plaintiff was not entitled to the relief prayed for in his complaint, or to any other relief, and we therefore directed judgment for the defendants, believing that it was the understanding of the parties that the rights of the parties in the action should be determined upon the proofs as found in the record. We are now informed that evidence of other irregularities was offered on the trial by the plaintiff, and this seems to be admitted by the counsel for the appellant. That being admitted to be a fact, we think the remittitur should be corrected so as to simply reverse the order appealed from and direct further proceedings by the circuit court according to law, and the clerk will so correct the judgment and remittitur.
As this correction would have been made' by calling the attention of the court to the error, without making a formal motion for a rehearing, the motion for a rehearing is denied, but without costs to either party.
By the Court.— Ordered accordingly.