Marks v. Board of Commissioners, 72 P. 894

Marks v. Board of Commissioners

72 P. 894 | Wyo. | 1903

Corn, Chief Justice.

The plaintiff in the court below (plaintiff in error here) brought suit to recover from the defendant (defendant in' error here) the sum of $213.55. Defendant demurred to the petition upon the ground that the action was barred by the statute of limitations, the demurrer was sustained and, plaintiff refusing to plead further, there was judgment for the defendant for costs. The plaintiff alleges the sustaining of the demurrer as error.

The bar of the statute of limitations becomes available on demurrer only when the petition shows affirmatively that the statutory period had elapsed before the action was commenced. When this does not appear the statute must be pleaded. (Huston v. Craighead, 23 O. S., 209; Seymour v. Railway Co., 44 O. S., 12; Cowhick v. Shingle, 5 Wyo., 87.) It is insisted in this case that the suit is for the recovery of a tax and is barred by Section 4172 of the Revised Statutes, which provided that “no recovery shall be had unless the action be brought within one year after the taxes or assessments are collected.”

The petition sets out that plaintiff was a resident of Uinta County and engaged in sheep raising in that and the adjoining County of Sweetwater; that he owned about six thousand head of sheep, which on the 1st day of April, 1899, were all in Sweetwater County; that they were there returned and assessed for taxation, and that in November of the same year he paid the taxes on them to the authorities of Sweetwater County and that he owned no other property whatever in this State; that later in the season he removed them to their summer range in Uinta, giving notice to the authorities of that county, stating their number and class and the date when they crossed the county line; and that subsequently the taxes upon them, paid by him tg the County of Sweetwater, were divided between the two counties as provided by law; that he had no property whatever liable to the payment' of taxes in Uinta County for the year 1899'; that on July 18, 1900, the tax collector *494of Uinta County “sold twenty thousand pounds of plaintiff’s wool for the sum of $1,300, upon a so-called distress process whereby said tax collector claimed of the plaintiff the sum of $240.01 as taxes then alleged to be due from the said plaintiff to the said Uinta County for the year 1900, together with the costs of collecting the same;” that on February 2, 1901, the collector remitted to the plaintiff $520.74 and notified him that he had deducted from the $1,300, proceeds of the sale, the taxes for the year 1900 and also the sum of $213.55 as taxes for the year 1899, anül that plaintiff had no other notice or knowledge that the said sum of $213.55 had been withheld from him; that he demanded payment of the amount from the defendant on October 29, 1901, and payment was refused.

Defendant in error contends that the taxes were collected and the statute commenced to run on July 18, 1900, when the sale of the wool was made, and that, consequently, more than one year had elapsed prior to the commencement of the action on January 28, 1902. And, without deciding these questions at this time, it may be conceded that the action is for the recovery of a tax and that the statute began to run from the date of its collection. This leaves but one question to be decided in the present proceeding, and that is whether the petition shows affirmatively that the tax was collected prior to February 2, 1901. Taking always the allegations of the petition as the facts in the case, as must be done upon demurrer, it appears that the property was sold for the taxes of 1900. Conceding that it must be presumed that the collector immediately applied so much of the proceeds of the sale as was necessary to the payment of the taxes of 1900, nothing else appears beyond the fact that there was then remaining in his hands a surplus which, in the absence of any legal demand to which he might apply it, must under the statute be returned to the owner. There is no allegation in the petition that it was then applied to the payment of any taxes claimed to be due for 1899, the property was not distrained or sold for *495taxes claimed to be due for that year, but for another purpose, and, therefore, no presumption arises that it was so applied upon any theory that the money was by the officer devoted to the purpose for which he obtained it. Nor can any presumption arise that he so applied it based upon.his duty to collect the tax and, therefore, to apply to its payment any money of plaintiff coming into his hands as collector, for the fact, as stated in the petition, was that no such tax was owing by plaintiff and, therefore, there was no duty resting upon the officer to collect such amount, and the application of any part of the fund to such purpose would have been an unauthorized and unlawful conversion of it.

Section 1880 of the Revised Statutes, under which the sale was made, provides that “any surplus remaining above the taxes, charges of keeping, transportation and fees of sale, shall be returned to the owner, and the collector shall, on demand, render an account in writing of the sale and all charges.” This return of the surplus conveyed to the plaintiff the first notice or knowledge that any part of the proceeds of the sale had been applied to the payment of taxes claimed to be due from him for the year 1899, and it was not made until February 2, 1901. It does not appear in any way whatever that the amount sued for was applied to that purpose at any time prior to that date. And if any presumption arises it would seem rather to be that the officer returned the surplus, as it was his duty to do under the statute, immediately or within a reasonable time after deducting the taxes and charges, and not that he kept it in his hands without any apparent reason for more than six months.

It is urged by counsel for defendant in error that plaintiff in errof cannot prevent the running of the statute by his want, of knowledge that his money had been so applied, as the records of the county are open to public inspection and it was his duty to ascertain. But it is not his want of knowledge that affects the question. It is the entire absence of any evidence that the amount sued for was applied to the *496payment of taxes, or in any way converted by the collector to the use of the county, or that there was, or could have been, any record of such transaction prior to February 2, 1901.

Upon an examination of all the averments of the petition, we think it is entirely clear that it does not appear therefrom that the amount sued for was applied to the payment of taxes at an)' time prior to February 2, xyoi, which was within a year prior to the commencement of the suit. The demurrer was, therefore, erroneously sustained. What the evidence may show upon a trial upon a plea setting up the defense of the statute is matter of conjecture and does not affect this proceeding. We decidS only the single proposition presented by the record.

The judgment will be reversed and the cause remanded for a new trial. Reversed.

Knight, J., and Pottrr, J., concur.