17 F.2d 710 (8th Cir. 1927), 7402, Seay v. Hawkins

Docket Nº:7402.
Citation:17 F.2d 710
Party Name:SEAY et al. v. HAWKINS.
Case Date:January 20, 1927
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 710

17 F.2d 710 (8th Cir. 1927)

SEAY et al.



No. 7402.

United States Court of Appeals, Eighth Circuit.

January 20, 1927

Lloyd J. Seay and W. F. Pardoe, both of Sapulpa, Okl. (Johnson & Miller, of Bristow, Okl., and Wayne H. Lasater, of Sapulpa, Okl., on the brief), for appellants.

Ernest B. Hughes, of Sapulpa, Okl. (John R. Miller, Earl Foster, and Edwin A.

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Ellinghausen, all of Sapulpa, Okl., on the brief), for appellee.

Before BOOTH, Circuit Judge, and PHILLIPS, District Judge.

BOOTH, Circuit Judge.

This was a suit brought by appellee, hereafter called plaintiff, against the appellants, who were respectively delinquent tax collector, sheriff, treasurer, and tax ferret, of Creek county, Okl., to enjoin them from selling under tax warrants for delinquent personal property taxes certain real estate owned by plaintiff in that county. Jurisdiction rested on divers citizenship and the requisite amount involved.

The controlling facts disclosed by the evidence are as follows:

Section 9798, Comp. Okl. Stat. 1921, reads:

'The board of county commissioner of any count in this state may contract with any person or persons to assist the proper officers of the county in the discovery of property not listed and assessed, as required by existing laws, and fix the compensation at not to exceed fifteen per cent. of the taxes recovered under this article. Before listing and assessing the property discovered, the county treasurer shall give the person in whose name it is proposed to assess the same, ten days' notice thereof by registered letter, addressed to him at his last known place of residence, fixing the time and place when objections in writing to such proposed listing and assessment may be made. An appeal may be taken to the county court for the final action of the treasurer within ten days, by giving notice thereof in writing and filing an appeal bond, as in cases appealed from the board of county commissioners to the district court.'

Plaintiff is a Creek freedman. He attained his majority January 20, 1924. Prior to that time, and subsequent to January 29, 1923, he was under the guardianship of L. W. McEwen, duly appointed by the county court of Creek county, Okl. Shortly prior to December 4, 1923, defendant Weakley, the tax ferret, proceeding under the statute above quoted, reported to the county treasurer that he had discovered that plaintiff had been the owner of certain personal property subject to taxation, consisting of cash, as shown by his guardian's reports for the years 1917 to 1922, inclusive; that the property had not been listed and assessed for those years. Thereupon the following notice was prepared and sent by registered mail:

'Office of Treasurer of Creek County.

'James E. Payne, Treasurer, Sapulpa, Oklahoma.

'Dec. 4; 1923. 50141

'L. W. McEwen, Bristow, Okl., Gdn. of Dewey Hawkins-- Dear Sir: Information has been filed in this office by R. H. Weakley, the authorized tax ferret of Creek county, that you were the owner of personal property consisting of the following:

'Cash as shown by guardian's reports, Bristow City, the fair cash value of the same being $54,404, which was subject to taxation in Creek county, Oklahoma, for the year

1909 $........ 1914 $........ 1919 $ 5,097.00

1910 $........ 1915 $........ 1920 $ 7,378.00

1911 $........ 1916 $........ 1921 $24,922.00

1912 $........ 1917 $6,429.00 1922 $ 7,153.00

1913 $........ 1918 $3,425.00 1923 $.........

and not assessed and extended on the tax rolls. Before assessing and extending same on tax rolls, the law provides that you shall have ten days' notice in which you may file with this office, in writing, under oath, any objections to such listing and assessing.

'Now, therefore, as county treasurer of Creek county, Oklahoma, I will consider, as provided by law, any written statement you may submit, together with any and all other evidence concerning such valuation and assessment of the above-described property, and will take such action as the law directs in the matter.

'If no objection to the above proposed listing and assessment be made on or before the 15th day of December, 1923, the same will be extended on the tax rolls and collected as other taxes, and will be subject to the same penalties, etc., as other taxes.

'--, County Treasurer.'

The original notice which was mailed was not produced in evidence, but a carbon copy was produced, and reason was shown for not producing the original. Across the face of this notice was written, 'Entered 4/15/24.' It did not appear clearly by the evidence whether the original had the words 'Gdn. of Dewey Hawkins' after the name of L. W. McEwen, to whom the notice was addressed. The evidence showed that the original did not contain the entry, 'Entered 4/15/24.' The latter entry would naturally not be on the original, as will be explained in a moment.

The testimony showed without contradiction that the notice of McEwen was received by him on the 5th of December, 1923; that there was no appearance on behalf of plaintiff on the 15th of December, 1923, the date fixed in the notice; that on April 15, 1924,

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the assessment was extended on the tax rolls, and the entry, 'Entered 4/15/24,' was made on the notice; and that proceedings were thereafter taken for collection, as in case of other taxes.

The evidence further showed that McEwen was the legally appointed guardian of plaintiff until the 20th of January, 1924, when plaintiff became of age. On the 21st of January, 1924, plaintiff and his wife executed a trust agreement, by the terms of which all of his property with the exception of household effects, automobile, and bank account was conveyed to William Ales, Porter Mann, and Sigrid Hawkins, the wife of plaintiff, as trustees, to hold and manage and pay over the income to plaintiff and others as set forth in the trust deed. The trustees were given absolute title, charge, and control of the property, with power to sell, lease, exchange, or incumber the same, to sue, compromise, or compound any suit or demand, and to do every act and thing necessary for the care, preservation, maintenance, use, and employment of the said estate.

On the trial all questions as to the validity of assessment and levy of taxes for the year 1923 were withdrawn from the case. The character of the proceedings before the county treasurer is not in dispute. In the case of Anderson v. Ritterbusch, 22 Okl. 761, 793, 98 P. 1002, 1015, the court said: 'The proceeding before the treasurer is not an action at law, nor a suit in equity, but a summary proceeding of a quasi judicial nature. ' Both parties in the case at bar agree that the proceeding was in the nature of a judicial or quasi judicial proceeding, and we shall so treat it.

The position of the plaintiff in the trial court was that he had never received any notice of the proceedings which resulted in the assessment and levy of taxes against him; that he had been afforded no opportunity to appear in said proceedings and contest the same; that the proceedings were arbitrary and illegal, and amounted to depriving plaintiff of his property without due process of law. The court so found, and granted a permanent injunction. Appeal was taken.

The validity of the decree is challenged by appellants on various jurisdictional and procedural grounds:

(1) Inasmuch as plaintiff included in his complaint the 1923 taxes, but afterward on the trial withdrew these from consideration, that the jurisdictional amount was thereby reduced below $3,000, and consequently the court lost jurisdiction. Such would not be the result, if it was proper, in making up the jurisdictional amount, to include, as was done in the complaint, the incidental costs and penalties in connection with the taxes for the other years. That such cost and penalties are property so included has been held by this court in the case of Glen Inv. Co. v. Romero, 254 F. 239.

(2) That plaintiff lacked capacity to bring the present suit; that up to January 20, 1924, he was under the guardianship of McEwen; that after January 21, 1924, his property was in the hands of trustees; and that the trustees were the only proper parties to bring such a suit. It is to be noted that the judgment entered by the county treasurer April 15, 1924, was for personal property taxes. It was not against the trustees, nor was it against the property conveyed to them. It was entered in a proceeding to which plaintiff, through his guardian, was a party, as we shall see later on. Furthermore, plaintiff had a direct beneficial interest in the property sought to be levied upon under the judgment. We think these facts made plaintiff such a party in interest as enabled him to maintain the suit. 30 Cyc. 45, 51.

He is the real party in interest, and as such he comes within the provision of the first clause of rule 37, New Equity Rules, 'Every action shall be prosecuted in the name of the real party in interest. ' A similar provision in the Codes is generally construed in the same way. Pomeroy's Code Rem. (4th Ed.) sec. 76. Whether the trustees might also have maintained suit to enjoin the sale of real estate in their hands we are not called upon to decide. It is clear that they alone could not have maintained suit to cancel the judgment against plaintiff, or to enjoin its enforcement, except as against the land held by them.

(3) That the suit is really one against the state, and cannot for that reason be...

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