55 P. 653 | Idaho | 1898
— This is an action for damages against the assessor, ex-oflicio tax collector, of Ada county, and his bondsmen, for the seizure and sale of certain personal property, consisting of a stock of merchandise, for taxes for the year 1897. The property originally belonged to the Hiekok Mercantile Company, Limited. On the application of certain creditors of said corporation, the district court in and for said county appointed F. C. Bamsey, as receiver. He qualified and took possession of said property on the eleventh day of May, 1897. On the seventeenth day of May, 1897, the said assessor assessed said property to the Hiekok Mercantile Company, Limited; F. C. Bamsey, receiver. The said receiver continued in the possession thereof, selling and disposing of the same under the order of said court, until about the 20th of August, 1897, when said court ordered said receiver to, on the 1st of September, 1897, sell whatever remained of said stock of goods and book accounts to the highest bidder for cash. And such proceedings were had under said order of sale that the plaintiff, who is respondent here, became the purchaser of what remained of said stock of goods, book accounts, etc., and took possession thereof. It appears that the said receiver had sold about two-thirds of said stock of goods after said assessment was made, and prior to the sale of said goods and merchandise to the respondent as
The appeal is from the judgment on the judgment-roll, which contains no bill of exceptions. Counsel for respondent contends that all of the points relied on by the appellants arose on demurrer, and that the order overruling the demurrer should have been brought here by bill of exceptions or statement, and cannot be heard in the court for that reason, and cites Berry v. Alturas Co., 2 Idaho, 296, 13 Pac. 233. That decision was rendered by the territorial supreme court in February, 1887, under section 403 of the Code of Civil Procedure of 1881. That section was amended subsequent to the rendition of said decision, and is now section 4427 of the Revised Statutes of 1887, which went into effect June 1st of that year. The amendment provides, among other things, that an order sustaining or overruling a demurrer need not be embodied in a bill of exceptions, but the same, appearing in the records or files, may be reviewed upon appeal as though settled in a bill of exceptions. Said amendment does away with respondent’s contention.
Counsel for appellants contend that a tax on personal property is a hen upon such property while it remains in the county where it is assessed. In other words, were the taxes so assessed a lien upon the property to the extent that the assessor could seize and sell it, so long as it was in the county where assessed, although it had passed into the hands of an innocent purchaser for a valuable consideration? When such property was assessed, it was in the hands of F. C. Ramsey, receiver, and assessed to the “Ilickok Mercantile Company, Limited; F. C.
Recurring to the exact point under consideration, and that is whether said tax was a lien on said property, we are clearly of the opinion it was not. The _ tax lien in this state owes its existence wholly to the provision of our statutes. Section 1412 of the Revised Statutes is as follows: “Every tax has the effect of a judgment against the person and every lien created by this title has the force and effect of an execution duly levied against all of the property of the delinquent; the judgment ia not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof.” Section 1413: “Every tax due upon personal property is á lien upon the real property of the owner thereof from and after the second Monday in April in each year.” Section 1414: “Every tax due upon real property is a lien against the property assessed; and every tax due upon improvements upon real estate assessed to others than the owner of the real estate, is a lien upon the land and improvements, which several liens attach as of the second Monday of April in each year.” Said section 1412 declares that “every lien created by this title [title 10 of the Revised Statutes] has the force,” etc. Then section 1413 declares that every tax due upon personal property is a lien upon the real property of
It is contended that if the appellant Pettingill acted illegally in seizing and selling said property, he acted in a ministerial capacity, and not judicially, and for that reason his bondsmen are not liable for such acts. In the seizure and sale of said property it is conceded that he acted in the utmost good faith, and the record shows that he acted officially. Under the provisions of section 403 of the Revised Statutes’, his sureties are liable to any person injured or aggrieved by the wrongful act done in his official capacity. The court that appointed said receiver ought, if possible, to reimburse the tax collector for the actual amount of taxes that he turned into the county treasury, collected on said property, out of any funds that may be under the control of said court, belonging to said Hickok Mercantile Company; for, if proper application had been made to the court, it would have directed the receiver to pay said taxes as required by the provisions of said section 1448, and the tax collector and his sureties would have escaped the loss and vexation of this suit. The judgment of the court below is affirmed, and costs awarded to the respondent.