27 Iowa 323 | Iowa | 1869
Since the evidence is not in the record, the facts found and reported by the referee must be taken as true.
On those facts was the plaintiff entitled to judgment? The ground of the action, as stated in the petition, is, that the moneys collected were the proper moneys of the plaintiff, and were, by mistake of the county treasurer, paid over to the defendant, when they should have been paid to the plaintiff.
.The case reported by the referee however is'not precisely this, but somewhat different. The main mistake was not on the part of the county treasurer, but occurred at an earlier period than the receipt of the taxes by that officer.
Now, it is evident that the last step taken toward collecting ten per centum or tax certified up by tlie plaintiff was tbe levy. The county officers made the order for the levy and there stopped. This rate, that is, the rate or per
If this be so, the money collected by the county treas^.s urer did not belong as of legal right to the plaintiff, afid if so, the basis of this action fails. 5 ; \
This I proceed to express without committing the' court to its soundness.
The plaintiff’s action is for money had and received. Such an action ex equo et bono, and rests upon an equitable basis.
It appears from the answer and record that here there was a dispute between the two districts respecting their boundaries. Each claimed the territory in question to belong to, it. Instead of settling this question in some legitimate mode by mandamus, quo warranto or other appropriate proceeding, the controversy as to boundaries was permitted to remain open. Under such circumstances, if one district allows the other to lery and collect or receive taxes from year to year, and expend them to meet the annual wants of the district so receiving them, I am ready to hold that the corporation permitting this to be done (whatever other remedy it may have or might have had) cannot maintain therefor an action for money had and received. Such a case differs from The District Township of Norway v. The District Township of Clear Lake, 11 Iowa, 506.
Again, the record shows the name of each tax payer who, from year to year, paid the taxes now sought to be recovered. These taxes were demanded and collected under and by virtue of a levy, which, as before shown, was never made.
It seems to me that the right of action on the part of the tax payer is just as strong as that of the plaintiff, and yet if the tax payer should sue, he could not recover if his payment was not compulsory, although the defendant had no legal right to the taxes it received.
We unite in the conclusion that the judgment rendered by the District Court must be reversed, and the cause remanded for a new trial.
Reversed.