O'Sullivan v. Blakely, 104 P. 297

O'Sullivan v. Blakely

104 P. 297 | Or. | 1909

Opinion by

Mr. Chief Justice Moore.

1. The seizure of the personal property was made pursuant to the following enactment:

“It shall be the duty of the sheriff to levy upon the goods and chattels of any person or persons removing from the county without first paying all taxes charged against them; and he shall make sale thereof, if necessary, in the manner prescribed in this chapter.” Section 3137, B. & C. Comp.

This action is maintained under the code title of “Claim and Delivery” (Section 284, B. & C. Comp.), which form, it has been said, was substantially the common-law remedy of replevin. Casto v. Murray, 47 Or. 57, 63 (81 Pac. 388, 883) ; Freeman v. Trummer, 50 Or. 287, 292 (91 Pac. 1077). The plaintiff herein did not claim the immediate delivery of his goods, and hence he was not required to give, and did not make, an affidavit that the property had been taken for a tax. Section 285, subd. 4, B. & C. Comp. The statute last noted practically prohibits the maintenance of the former action of replevin in cases like the one at bar.

2. It will thus be seen that the provisional remedy of claim and delivery is not entirely co-ordinate with the *554common-law action of replevin, but it conforms to the general rule established by courts that, where property is seized for a tax upon a warrant not void on its face, such property cannot be replevied by the defendant in the tax warrant from the officer so seizing it. Cobbey, Replevin (2 ed.) § 333.

3. A tax warrant, legal in form, proceeding from a court or an officer having authority to issue it, and which on its face contains nothing fairly to disclose to any one that it was put forth without sanction of law, will protect the officer whose duty it is to execute such process to the same extent as if it were valid; but it will not enable such official to build up a title, either general or special, to property seized by virtue of the mandate. Cooley, Taxation (2 ed.), 801. When; therefore, a title to property is asserted by an officer, who undertakes to justify his execution of a tax warrant, he must, as in cases of seizure under an attachment or under an execution, show his authority, the regularity of the proceedings under which he acts, and that the property levied upon, to satisfy the ratable measure of the sovereign’s exaction, belongs to the person named in the warrant. Shinn, Replevin, § 538.

4. The sale of property by a tax collector, for the payment of the tribute which the law demands, is an in invitum proceeding, the regularity of which must be established by the officer who attempts to uphold a title pursuant to the sequestration. The amended complaint alleged that at all the times therein stated the plaintiff was the owner, etc., of the personal property, which on March 24, 1906, the defendant unlawfully seized. The complaint does not state, nor does the answer allege, that the plaintiff owned such property in Wallowa County on March 1, 1905, at the hour of 1 o’clock A. M., when the goods should have been assessed to the person who at that time owned them. Section 3057, B. & C. Comp., as amended by Laws Sp. Ses. 1903, p. 4.

*5555. The answer does not allege that the personal property was listed 'by the assessor, unless such fact is to be inferred from the averment “that on said tax roll [referring to a transcript of the original assessment roll] the plaintiff’s personal property assessment, as equalized by the county board of equalization, was, after his exemption of $300, $13,376.” As the answer does not set forth the several steps required to be taken to form the basis of a valid tax, it did not aver facts sufficient to constitute a defense to the action, and an error was committed in overruling the demurrer.

For the error so committed, the judgment is reversed, and the cause remanded for such further proceedings as may be necessary, not inconsistent with this opinion.

Reversed.

Mr. Justice Eakin, having made an order in this cause, took no part in the trial or consideration hereof.