Hartman v. Hunter

• Decision Date: 30 March 1897
• Citation: 56 Ohio St. 175,46 N.E. 577
• Parties: HARTMAN v. HUNTER, County Treasurer.
• Court: Ohio Supreme Court

46 N.E. 577

56 Ohio St. 175

HARTMAN v. HUNTER, County Treasurer.

Supreme Court of Ohio.

March 30, 1897

Error to circuit court, Lucas county.

Action by Samuel A. Hunter, county treasurer, against Frances L Hartman. Hunter, as treasurer of Lucas county, filed his petition in the court of common pleas against Hartman, under section 1104 of the Revised Statutes, alleging that there stood charged upon the duplicate against described lands of the defendant taxes and assessments theretofore duly levied amounting to $591.42, that they were unpaid, and praying for a decree to enforce the lien for that amount and 5 per cent penalty thereon. Hartman answered, admitting that the sum alleged, composed of various items, stood charged against the premises, but alleging that certain specified items thereof amounting to $337.62, were assessments for township ditches levied in the years 1885 and 1886, and pleading as to those items that the cause of action arose more than six years before the commencement of the action. In the court of common pleas a demurrer to this answer was sustained, and a judgment rendered for the plaintiff for $591.42 and interest and penalty. Hartman filed her petition in error in the circuit court, where the judgment of the common pleas was reversed as to the penalty, and affirmed in all other respects. Defendant brings error. Reversed.

Syllabus by the Court

1. Exemption from the operation of a statute limiting actions and in its terms containing no exception, is a privilege of sovereignty, and it can be asserted only by or on behalf of the sovereign.

2. A civil action brought by the treasurer of a county, under section 1104, Rev. St., to enforce assessments for the construction of township ditches, is, by the second clause of section 4981, Id., barred in six years after the cause of action arises.

B. A. Hayes, for plaintiff in error.

J. A. Barber, for defendant in error.

SHAUCK, J. (after stating the facts).

The limitation relied upon by the plaintiff in error is prescribed by section 4981 of the Revised Statutes, which provides that ‘an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within six years after the cause of action accrues.’ Whether the liability asserted by the treasurer in this case be referred to section 1104 of the statutes, which authorizes the civil action to enforce the assessments for township ditches, as well as other assessments and taxes, or to the provisions of the acts under whose favor the ditches were constructed, it is a liability created by statute. It is, however, contended that although the liability is within the terms of the limitation, it is, in view of the public character of the demandant, within that exemption from the operation of acts limiting actions which is defined by the familiar...