Thornburg v. Cardell

123 Iowa 313 | Iowa | 1903

Lead Opinion

McClain, J.

i. appealjomt noface. Appellees’ motion to dismiss the appeal on the ground that the appellants, though not co-parties, have improperly attempted to perfect the appeal by a joint notice of appeal, is submitted with the case, ailfi gfiorfifi be first determined. The theory of counsel for appellees seems to be that as three separate pleadings were filed in behalf of the plaintiff, Webster county, and Kossuth county, and separate demurrers were interposed to each of these pleadings, the appellants should have served separate notices of appeal. It is enough to say, in answer to this contention, that but one ruling was made on the throe demurrers, and they were sustained on the same grounds, and the court thereupon rendered a joint judgment against the three appellants for costs. The appeal is from this judgment, and we think there can be no impropriety in the joinder of parties against whom a single judgment is rendered in a notice of appeal from such judgment. Indeed, such seems to be the proper practice, even though the parties appealing have not a common interest, Kaehler v. Halpin, 59 Wis., 40 (17 N. W. Rep. 868); Sharon v. Sharon, 68 Cal., 326 (8 Pac. Rep. 614); Benbow v. Garrard, 139 Ind., 571 (39 N. E. Rep. 162); Donnell v. Shields, 30 N. C. 371; Smith v. Cunningham, 30 N. C. 460; 2 Cyc. 763. It is true that by the provisions of our Code one of several co-parties may appeal by serving notice on other co-parties, and that such other co-parties, refusing 'to join, cannot after-■wards appeal in their own right. Code, sections 4111, 4112. But there .is nothing in the provisions of our Code, so far as we have been able to discover,- nor in the decisions of this court, rendering improper a joint appeal by all the parties against whom a joint judgment is rendered, regardless of what may be their respective interests as affected by such judgment. The motion to dismiss the appeal is therefore overruled.

This case was decided in the lower court prior to any of the decisions under the provisions of the Code of 1897 and amendments thereto, relating to the enforcement of taxes on property concealed or omitted from assessment. The decisions of this court rendered since that time have disposed of all the fundamental questions involved in this appeal. See Galusha v. Wendt, 114 Iowa, 597; Lambe v. McCormick, 116 Iowa, 169; Bell v. Stevens, 116 Iowa, 457; Beresheim v. Arnd, 117 Iowa, 83; Mead’s Estate v. Story County, 119 Iowa, 69; Siberling v. Croper, 119 Iowa, 420.

A brief statement of the application of these decisions to the present case, so far as any questions of doubt are involved, is all that is necessary. The points to be considered are: First. From what time should the five-year limitation provided for in Code, section 1374, oh the right of the treasurer to collect taxes on concealed or omitted property, be computed? Second. Can the auditor, under Code, section 1385, and chapter 47, page 31, Acts 28th General Assembly assess concealed or omitted property, without limitation of time ?'

3 assessment pronely by treasurer. The faets in this case bearing upon the first question are that plaintiff’s action was brought in November, 1900, and the treasurer seeks to recover not only taxes omitted on prop-in 1896 and 1897, but also on property omitted in 1895, as to which the assessor should haTe ma(je pqg agSessment prior to the 1st of April (Code, section 1365), and as'to which the board of review should have acted prior to the 1st day of ]\fay (Code, section- 1370), and which should have been included on the tax lists delivered to the treasurer by the auditor on the 31st day of December (Code, section 3187). It is argued that up to the 31st day of December .this omitted property might have been placed upon the tax lists, and therefore that the right of the treasurer to bring action under Code, section 1374, did not accrue until that date, and that the five-year period of limitation did not commence to run until that date. But the language of section 1374 is that the treasurer may bring action “at any time within five years from the date at which such assessment should have been made,” and the omission of the taxpayer which constitutes such fault on his part as to justify the extraordinary remedy provided for by Code, section 1374, is the omission to have his property duly returned by the assessor. Galusha v. Wendt, 114 Iowa, 597, 606. We think, therefore, that the five-year limitation on! the treasurer’s right to act under section 1374 is to be com-1 puted from the completion of the work of the assessor, to-wif,| April 1st. It is not material, in construing this language of the statute, to determine when the treasurer might have first brought suit, but only to determine what is the limitation on his right to bring suit thereby imposed. Our conclusion is that plaintiff’s action was brought too late to entitle him to recover for taxes omitted from assessment in 1895. This point has, indeed, been expressly decided in Siberling v. Croper, 119 Iowa, 420.

3 assessment property by auditor. With reference to the second question aD>ve indicated, to-wit, the right of -the auditor of Webster county to add to the tax lists of 1900 an assessment for omitted property of the defendant from 1888 to 1895, inclusive, aud also IOT like omissions from assessment in 1896 and 1897, it is scarcely necessary to add anything to what has already been said by this court in the case of Mead’s Estate v. Story County, 119 Iowa, 69. It is“ there held that the power of the auditor, under Code, section 1385, and chapter 47,page 31,Acts 28th General Assembly is limited to the correction of the tax lists for the current year, so as to include therein taxes which should have been entered on such lists. The conclusion there stated is that, “save as to a current year, tire duty of assessing and listing omitted property for taxation rests with the county treasurer, and that under the statute the county auditor has no authority to act in such eases.” No doubt, the auditor may act on any given tax list after it has passed into the hands of the treasurer, for that seems to be expressly contemplated by the statutory language. But he can act with reference to any such list only for the purpose of adding thereto taxes on property omitted from assessment for the year represented by such list. It is plain, then, that the county of Webster cannot, by any action of its auditor, have placed on the tax list for the year 1900 any assessment on property omitted from, taxation for prior years, whether those years were within or beyond five years from the time when the auditor attempted to act.

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Rehearing

Opinion on Rehearing, Wednesday, Maroii 9, 1904.

Deemer, C. J.

After the original opinion was filed in this case, counsel for appellee presented a petition for a rehearing, in which they called our attention to one point which was overlooked on the original submission. That had reference to the failure of the plaintiff Thornburg, as treasurer of Dallas county, to list or assess defendant Cardell’s property before bringing suit. Plaintiff Thornburg alleged in his original petition that he had made demand of said defendant Cardell for the payment of the taxes sought to be recovered with interest, and that defendant failed and refused to pay the same. One of the grounds of defendant’s demurrer to this petition was that “no assessment of said property had been made, and that no tax could legally be levied or collected without an assessment.” This point was overlooked when writing the former opinion, and a rehearing was granted as to appellant Thornburg on the proposition as to whether or not an assessment was necessary under Code, section 1374, as amended by chapter 50, page 33, Acts 28th General Assembly, before an action could be brought to recover taxes on property omitted from taxation. During the trial in the lower court there was a waiver of an actual assessment as to Webster and Kossuth counties, but no waiver as to the action brought by and on behalf of Dallas county.

4. collection of taxes: pleading. Counsel for Thornburg argue that the question thus stated was not presented to the trial court; that the defect in the petition, if any exists, was waived by failure co move for a more specific statement; that the demand , . . . alleged m the petition was equivalent to an assessment, and that in the event there was no notice or assessment, the defendant Cardell has suffered no injury, and therefore cannot be heard to complain. We find on examining the pleadings, that the point was made in the trial court, and, although perhaps not expressly passed upon by it, it was presented, and should have been considered. We are also of opinion that the pleading filed by plaintiff recites neither notice given the defendant, nor an assessment of his property. There is an allegation of a demand, which would, perhaps, have been sufficient, under section 1374: of the Code, before its amendment by chapter 50, before mentioned, but, unless this demand was sufficient under the law as it stood when the assessment was made, then there has been no assessment of the defendant’s property. That an assessment in some form is a prerequisite step to an action for the recovery of taxes, is well settled by the authorities. Worthington v. Whitman, 67 Iowa, 190; Appanoose County v. Vermilion,70 Iowa, 366; Cooley on Taxation, page 352; Marsh v. Board, 42 Wis. 509.

5. assessment of property: notice. This action was commenced after the adoption of chapter 50, page 33, Acts 28th General Assembly, and the main question in the case is, should plaintiff have followed the requirements of that act as to notice, etc., before , . _ bringing his action s If that act is amendatory of section 1374 of -the Code, there is no doubt that he should have done so. We have heretofore held in many cases that it is an amendatory act. Galusha v. Wendt, 114 Iowa, 606; Lambe v. McCormick, 116 Iowa, 169; Beresheim v. Arnd, 117 Iowa, 83; Sieberling v. Croper, 119 Iowa, 420. This being true, and it appearing that plaintiff did not give defendant Cardell notice of the proposed listing, and an opportunity to be heard, there was no valid assessment of defendant’s property; and the plaintiff, as the representative of Dallas county, is not entitled to recover.

But it is argued that notice and an opportunity to be heard were not essential to the validity of the assessment, and that in no event has the defendant suffered any injury or prejudice by reason of plaintiff’s failure to give the same. This view overlooks the fundamental proposition that it is not a question of injury or prejudice to the defendant, but of right in the plaintiff to maintain the action. Unless there was a valid assessment under the law, there was no right of action in the plaintiff, and he cannot recover. At the time this action was brought, notice and opportunity to be heard were essential to the validity of the assessment, and these absent there was no assessment.

The cases cited by appellant Thornburg on these propositions are not in point. In none of them was there any such statutory requirement as to notice as appears in chapter 50, page 33, Acts 28th General Assembly. Our Legislature has seen fit to require notice, and the requisite steps must be followed, to make a valid assessment.

This disposes of the appeal as to the appellant Thorn-burg, and it follows that as to him the judgment must be affirmed. t

6. assignment of error. Appellee Cardell also argues that, as the case is affirmed as to Thornburg, it must also be affirmed as to the other defendants, because they unite in their assignments of error. I11 view of the order made in granting the petition for rehearing, we Deed not consider this proposition. However, the ease of Fisher v. Thirkell, 21 Mich. 124 (4 Am. Rep. 422), in discussing statutes with reference to assignments of error very similar to our own, before the recent repeal thereof, holds very properly that such assignments of error as were made in this case may' be treated as joint and several, or joint or several, according to the nature of' the error assigned. Under the peculiar facts of this case, we think that one of the parties joining in the assignment may fail, while another may succeed. The general rule, of course, is that upon joint assignments of error the point must he good as to all, else it will not be considered; but owing to the peculiar nature of this action, that rule does not apply.

The result of the whole matter is that the demurrer to the plaintiff Thornburg’s petition was properly sustained, and that the demurrers to the cross-petitions of Webster and Kossuth counties should have been overruled. The case, as to these two last mentioned counties, will he reversed, and the cause remanded to the district court for such further proceedings as may he necessary with reference to taxes'for the years 1896 and 1897. The defendant Car dell will pay two thirds of the costs of this appeal, and the plaintiff Thornburg one third.

Aeeiemed in part, and reversed in part.