Acme Harvesting Mach. Co. v. Hinkley

• Decision Date: 26 June 1909
• Citation: 122 N.W. 482,23 S.D. 509
• Parties: ACME HARVESTING MACH. CO. v. HINKLEY ET AL.
• Court: South Dakota Supreme Court

122 N.W. 482

23 S.D. 509

ACME HARVESTING MACH. CO. v. HINKLEY ET AL.

Supreme Court of South Dakota

June 26, 1909

Appeal from Circuit Court, Marshall County.

Action by the Acme Harvesting Machine Company against W. L. Hinkley and others. From an order overruling a demurrer to plaintiff's complaint, defendants appeal. Affirmed and remanded.

Byron Abbott and Otto L. Kaas, for appellants.

Sears & Potter, for respondent.

SMITH J.

This is an appeal from an order overruling a demurrer to plaintiff's complaint. The complaint alleges, in substance: That in the month of January, 1905, the Acme Harvester Company, a foreign corporation, obtained a judgment in the circuit court of Marshall county against one Hinkley for $1,071.25; that at the time said judgment was entered there were unpaid personal property taxes for six years preceding against the Acme Harvester Company in Marshall county, amounting to $94.36; that on December 5, 1905, a warrant, issued out of the office of the county treasurer was placed in the hands of the sheriff, authorizing and directing him to collect such delinquent taxes out of the personal property of the Acme Harvester Company; that the sheriff, in the execution of said tax warrant, undertook to levy upon the said judgment by serving a notice of levy on the attorney who recovered the judgment and filing a copy of such notice with the clerk of the circuit court; that on December 11, 1905, the sheriff sold said judgment to one Lee for $50 and filed a certificate of such sale with the clerk of the circuit court; and that on December 12, 1905, said purchaser, Lee, filed a satisfaction of said judgment in the office of the clerk of court. The defendants Kass and Guy were sureties on an undertaking given by Hinkley on appeal and the defendants Amphlett and Wilson were, respectively clerk of court and treasurer of Marshall county. The plaintiff prays that the satisfaction of the judgment entered by the purchaser, Lee, on December 12, 1905, be set aside to the end that execution may issue on said judgment against Hinkley, the judgment creditor. All the defendants join in a demurrer to the complaint, which was overruled, and defendants appeal.

The demurrer was based upon three grounds; but in the view we take of this case it is only necessary to consider the first viz., that the attempted levy of the sheriff upon the judgment, under the tax warrant, was wholly and absolutely void. That a judgment is personal property and is subject to levy and sale on execution is clear. Sections 336, 340, Rev. Code Civ. Proc.; McLaughlin v. Alexander, 2 S. D. 226, 49 N.W. 99. But a judgment is not leviable except by authority of such statute, and such mode of levy must be strictly pursued. Section 98, c. 28, p. 65, Laws 1897 (section 2162, Rev. Pol. Code), provides: "No demand of taxes shall be necessary in order to fix the liability of the person against whom they are assessed, but it shall be the duty of every person subject to taxation under the law to attend at the office of the treasurer having charge of the collection of such taxes and pay his taxes; and if any person neglect so to attend and pay his taxes until after the first day of February in the year next succeeding the levying of the taxes, such treasurer is directed and required to collect the same by distress and sale. * * *" That an action will not lie for recovery of personal taxes has been repeatedly held by this court. Brule Co. v. King, 11 S.D. 294, 77 N.W. 107; Danforth v. McCook Co., 11 S.D. 258, 76 N.W. 940, 74 Am. St. Rep. 808. And in Hanson Co. v. Gray, 12 S.D. 124, 80 N.W. 175, 76 Am. St. Rep. 591, the question was again re-examined and the former decisions adhered to. These cases fully establish the doctrine in this state that the collection of personal taxes by distress and sale is the only and exclusive method of procedure. It may be proper to note, however, that the legislative assembly, by chapter 209, p. 308, Laws 1909, has expressly authorized county treasurers to maintain an action in the circuit court to collect delinquent personal property taxes against any person who is not a resident of the county and has no property therein, and this proceeding is applicable to all taxes which have theretofore been levied; but this enactment in no way affects the case now under consideration.

It is contended by appellant that the sale of the judgment under the tax warrant was legal and valid, and that therefore the demurrer to the complaint should have been sustained. Respondent contends that such levy and sale were absolutely void for two reasons: First, that the judgment, which conceded to be personal property, is intangible property and cannot be taken or levied upon in distress proceedings second, that said levy is void because...