101 Mich. 256 | Mich. | 1894
Plaintiff is the owner of 1,000 acres of land in the defendant township. In the year 1892 there was assessed against these lands the sum of $262.43. Plaintiff paid the tax to the treasurer of the defendant township under protest, and within 30 days brought this suit to recover back the amount, with interest. . He prevailed in the court below, and the defendant brings error.
The ground upon which the plaintiff recovered below was that the tax was levied without jurisdiction, for the reason that the record of the board of supervisors in which appeared the equalization and apportionment of taxes was not signed by the clerk of the board. The signature of the chairman of the board of supervisors was attached. On the trial of this case, the question being brought to the • attention of the court, the person who had been clerk in 1892, and who was at the time of the trial deputy clerk of the county, was permitted to sign his name as clerk nunc pro time. The circuit judge after-wards held that the clerk had no authority to make the amendment to the record of the board of supervisors, and entered judgment for the plaintiff for the full amount of the taxes.
It is contended that the certificates furnished the supervisors of the amount of taxes to be levied upon the township of Marion were irregular and insufficient. But this failure does not go to the validity of the tax. See Robbins v. Barron, 33 Mich. 124; Upton v. Kennedy, 36 Id. 215; Boyce v. Sebring, 66 Id. 218; and Auditor General v. McArthur, 87 Id. 463. It is to be kept in mind that this action is an equitable action in assumpsit, for money had and received; and in such case mere irregularity in action, which does not prejudice the party, cannot justify a recovery. There must have been such jurisdictional defect as to render the tax void, and not a mere irregularity in spreading the tax or informality in the warrant. See Gratwick, etc., Lumber Co. v. Village of Oscoda, 97 Mich. 221.
The State and county taxes were, however, affected by the action in permitting an amendment, and it becomes important to determine whether such an amendment was justified; as, if it was not, then there was no equalization, and it would be impossible to determine what portion of the taxes of the county and State should have been spread upon the assessable property in the township of Marion, and obviously it would be impossible to determine how much valid tax was imposed upon the lands of the plaintiff. The courts are not agreed upon the question as to when the custodian of a record may be permitted to amend the same in accordance with the facts. It is, we think, generally held that the clerk whose duty it is to make the record may make amendments of the same while in office, and when no rights have been built up on the faith of the
. It is argued in the brief of counsel for plaintiff that the school taxes were illegal, for the reason that the certificate furnished the supervisor, as required t by law, was not sufficiently full. The record does not show what portion of the tax paid was school taxes. It is true that the bill of particulars of plaintiff purports to show this, but we cannot act 'upon that without a special finding. We think the proper course will be to remand the cause for a new trial; but it is proper to say that, upon a new trial, the question of whether the school taxes may be recovered will not depend upon the formality or informality of the certificate required to be made, but upon
The judgment will be reversed, with costs to the defendant, and the case remanded for a new trial.
The deputy county clerk testified that he himself transcribed the records of the board in the journal, and neglected to sign said record.