Allerton v. Monona Cnty.

• Decision Date: 22 May 1900
• Citation: 111 Iowa 560,82 N.W. 922
• Parties: ALLERTON v. MONONA COUNTY.
• Court: Iowa Supreme Court

111 Iowa 560

82 N.W. 922

ALLERTON

v.MONONA COUNTY.

Supreme Court of Iowa.

May 22, 1900.

Appeal from district court, Monona county; Frank R. Gaynor, Judge.

Defendant's demurrer to the plaintiff's petition was sustained, and, plaintiff electing to stand on his petition, judgment was rendered against him, from which he appeals. Affirmed.S. H. Cochran, for appellant.

E. H. Hubbard and B. F. Ross, for appellee.

GIVEN, J.

On October 15, 1897, the plaintiff filed his petition in two counts, asking to recover $1,429.74, taxes levied upon lands owned by him to pay for constructing a ditch, which taxes he paid under protest, and which the defendant's board of supervisors refused to order refunded. The sole ground alleged for recovery is that the construction of the ditch is of no benefit whatever to plaintiff's land. No allegations are made showing that the tax was for any other reason illegal. The defendant demurred to each count on the ground that they fail to set forth any matter on account of which the said tax is erroneous, illegal, or contrary to law. Plaintiff relies upon the provisions in section 1852, McClain's Code, that, in actions for recovery of taxes erroneously or wrongfully assessed, “it shall only be necessary to prove that such lands so assessed were not benefited by the location, construction or maintenance of such ditch, drain or water course.” Section 1947 of the present Code, which took effect prior to the filing of this petition, and prior to the holding on the demurrer, provides that, on appeals from the assessment made in such cases as this, “it shall not be competent to show that the lands assessed were not benefited by the improvement.” These statutes simply fix a rule of evidence. The rule pertains exclusively to the remedy, and it was within the power of the legislature to change it. See Cooley, Const. Lim. § 450; Southwick v. Southwick, 49 N. Y. 510;Parsons v. Carey, 28 Iowa, 431;Wormley v. Hamburg, 40 Iowa, 22; Wood v. Brolliar, Id. 591; Land Co. v. Soper, 39 Iowa, 112;Tilton v. Swift, 40 Iowa, 78;Drake v. Jordan, 73 Iowa, 707, 36 N. W. 653;Kossuth Co. v. Wallace, 60 Iowa, 508, 15 N. W. 305;Richman v. Board, 70 Iowa, 627, 26 N. W. 24;Chambliss v. Johnson, 77 Iowa, 611, 42 N. W. 427. This case having been tried under the present Code, the rule of evidence therein prescribed applies. Wormley v. Hamburg and Wood v. Brolliar, supra. It is certainly clear that the present Code controls, and that under it plaintiff...