Keys v. Fink
81 Neb. 571
Neb.
1908
Check Treatment
Root, C.

Plaintiff resided in Pawnee county from 1882 until the summer of 1890, when he moved to Omaha. In 1904 the *572treasurer of Pawnee county sent to defendant, who is the treasurer of Douglas county, a distress warrant for the collection of plaintiff’s personal taxes for 1886, 1887, 1888, 1889 and 1890. Plaintiff claimed the tax for 1890 was void, and that he had paid the taxes for the other years recited in the warrant, and instituted this action to enjoin the collection of said taxes. The district court found that the tax for 1890 was valid, and dismissed the petition as to said year, but that plaintiff had paid all other taxes assessed against him in Pawnee county, and enjoined defendant from collecting them. Defendant appeals.

1. Defendant first complains that the court overruled his motion to compel plaintiff to malee his petition more specific, by stating “to whom said payments were made, and from whom said receipts were taken, also the time when paid and receipts taken.” If defendant was not entitled to have the motion sustained in toto the court did not commit reversible error. McDuffie v. Bentley, 27 Neb. 380; Hudelson v. First Nat. Bank, 56 Neb. 247. We do not think the dates plaintiff paid the taxes are material; nor, had he alleged payment on specific dates, would the court have excluded evidence of payment on other days.' The material fact was the payment, and not the date or dates when paid. Demuth v. Daggy, 26 Ind. 341; Cranor v. Winters, 75 Ind. 301; Swett v. Southworth, 125 Mass. 417; Goss v. Calkins, 164 Mass. 546. Nor would the dates of any receipts taken by plaintiff be material. Payment would liquidate the demand of the public, whether receipts were issued or not. Nor was it necessary to plead the name of the individual to whom payment was made. The public could only act through the instrumentality of officers and agents, and the burden would be upon the plaintiff to not only prove the payment of money, but also payment to some person authorized by law to receive the same. The name of the agent need not be stated in the pleading. Lee v. Minneapolis & St. L. R. Co., 34 Minn. 225; Todd v. Minneapolis & St. L. R. Co., 37 Minn. 358. *573There renin ins only the allegation of the place of payment to be considered. "Whether defendant, had he confined his motion to this one point, would have been entitled to that information, we do not say, but, considering the motion altogether, it ivas not reversible error for the court to rule as it did.

2. Defendant claims the evidence will not sustain the finding of the trial court, and we must confess we are not well satisfied with the record on this point. Plaintiff testified his poll tax was worked out for all the years of his residence in Pawnee county, and that he received receipts evidencing that fact; that he paid his personal taxes for 1886, 1887, 1888 and 1889 to delinquent tax collectors, but lie is unable to give the names of the persons to whom the money was paid, or to say whether they were deputy treasurers or deputy sheriffs, nor can he state the amounts paid by him. Plaintiff also testified that the person who collected from him also collected delinquent taxes from other individuals. Plaintiff further testified that he received receipts for the taxes paid; that in 189-1 he received notice from the county treasurer of Pawnee county that he had not paid all his personal taxes in that county, and that lie answered said letter; that soon thereafter a deputy county treasurer of Douglas county came to him Avith a statement or notice about this tax; that he then hunted up his tax receipts, and exhibited them to said official, and satisfied that official, who then returned the statement; that thereafter he mewed some three times, and that he and his family boarded some íavo years, during which time his household effects Avere packed and stored in a warehouse; that after the presentation of the warrant issued in 1901 he and his wife made diligent search, but Avere unable to find the receipts. Plaintiff is corroborated by his Avife as to the receipts and their loss, but neither witness is able to state how many receipts there Avere, or their form, or recitals, except that they were tax receipts. On the other hand, the tax lists in PaAvnee county indicate that said taxes were not paid, *574although they show that two distress warrants, including the one referred to in the petition, had been issued for the collection thereof. The first one issued was not exhibited on the trial, nor was any evidence given to apprise the court what, if any, return was made thereto. However, plaintiff and his wife seem to have been candid witnesses. The receipts having been lost, had the witnesses been so inclined, they could have testified to exact dates and amounts, so as to make their testimony more-definite, and we are convinced they were honest and truthful in their statements. Again, the evidence is undisputed that l)r. Keys sold, not only his house, but the furniture therein, when he moved from -Pawnee City, and that he remained in said city some months after said, sale, closixxg up his business and making collections. If the coxxnty officials had been at all diligent, they could have levied on this personal property for the delinquent tax, and in all probability plaintiff could have produced much more satisfactory evidence then of his payment than he could or did 14 years thereafter.

We are xvell aware of the rule that the laches of tax collectors will not release the perpetual lien of unpaid taxes, nor xvill mistakes of public officials satisfy an unpaid general tax, but all the facts and circumstances shown by the record justified the trial court in considering the somewhat uncertain evidence in the record as proof of payment. It is xvell established that parol evidence xvill be received to show the payment of taxes. 2 Cooley, Taxation (3d ed.), p. 807; Keesling v. Powell, 149 Ind. 372; Adams v. Beale, 19 Ia. 61; Hammond v. Hannin, 21 Mich. 374; McDonough v. Jefferson County, 79 Tex. 535, 15 S. W. 490; Richards v. Hatfield, 40 Neb. 879.

We are satisfied defendant’s assignments of error are without merit, and we therefore recommend that the judgment of the district court be affirmed.

Fawcett and Calkins, CC., concur.

*575By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.