Appeal of Delashmutt
| Decision Date | 19 September 1944 |
| Docket Number | 46537. |
| Citation | 15 N.W.2d 619,234 Iowa 1255 |
| Parties | Appeal of DELASHMUTT (three cases). |
| Court | Iowa Supreme Court |
John M. Rankin, Atty. Gen., and Jens Grothe, Sp. Asst. Atty. Gen for appellant.
Prichard & Prichard and John D. Beardsley, all of Onawa, for appellees.
The facts herein were stipulated. Essentially they are as follows: E N. Delashmutt died testate April 4, 1934, owning three farms in Monona County. The will gave the surviving widow a life estate with a vested remainder in testator's ten children. During 1942, three of testator's sons occupied the three farms. Each son occupied a separate farm under a separate oral agreement with the widow, each of which provided for an annual rental. The board of supervisors allowed each son a homestead tax credit for his respective farm. On July 24, 1943, the state tax commission notified the county auditor that these three tax credits had been set aside by it. Similar notice was given the taxpayers on the same day. Each taxpayer served a timely notice of appeal on the county auditor. No notice of appeal was served upon the state tax commission. The tax commission filed a special appearance in each case in the district court, contending that service of a notice of appeal on the tax commission was indispensable to the court's jurisdiction. The court overruled the special appearances. The tax commission then filed answers, the cases were submitted on the facts as stipulated, and decrees were entered, reversing the tax commission, holding that each of the three taxpayers was entitled to the homestead tax credit previously allowed him by the board of supervisors. The trial court gave the tax commission a certificate authorizing it to appeal each case. Appeals were promptly perfected to this court. By order of the Chief Justice, the three appeals have been consolidated for submission and decision in this court.
I. The first assignment of error challenges the overruling of the special appearances. This contention presents a question of the interpretation of Section 6943.148, Code 1939, Chapter 209, Acts of the 50th G.A.
The first paragraph of said section provides that any person whose claim for a homestead tax credit has been denied by the board of supervisors may appeal to the district court 'by giving written notice of such appeal to the county auditor of said county within twenty days from the date of mailing of notice of such action by the board of supervisors.' The second paragraph of this section provided that, if a claim were allowed, the owner 'or the state tax commission' might appeal from the allowance of the claim 'by giving written notice of such appeal to the county auditor of said county and such notice to the owner of said claimed homestead as a judge of the district court shall direct'.
By Chapter 209, Acts of the 50th G.A., the words 'or the state tax commission' were stricken from the second paragraph of said section and a new third paragraph was inserted. It provides that the tax commission may set aside any allowance of a homestead tax credit within one year after receipt of certification of such allowance if it finds, after investigation, that it is not justified by the law or the facts. Notice thereof must be given to the county auditor and to the claimant. The claimant 'may appeal from the action of the state tax commission in the same manner, and in the same time, as provided by paragraph one (1) of this section.'
There is no express requirement that any notice of appeal be served on the tax commission. The only notice specified by paragraph one of the section is that to the county auditor. Such a notice was given herein. If the legislature intended that any other notice of appeal should be required, it should have said so. We are unwilling to require one by implication herein.
The commission contends that service of notice on it is indispensable to due process of law. It concedes, however that it is not such a person as could raise the question. See Lincoln Tp. Sch. Dist. v. Redfield Consol. School Dist., 226 Iowa 298, 283 N.W. 881, and cases cited. The assertion is therefore made by way of persuasion. But we see no force to the argument. Parenthetically, the commission was notified in this case. The special appearances were properly overruled.
II. The other assignment of error challenges the court's holding that the remaindermen herein are 'owners' of the farms they occupy within the contemplation of subparagraph 2, Section 6943.152, Code 1939. Said statute provides as follows:
(Italics supplied.)
There is no question but that the various interests in the legal title to the farms in question are shared only by blood relatives. Accordingly, the decision herein turns on the narrow question whether the three claimants, as owners of undivided interests in the remainder after their mother's life estate, occupy their homesteads under the devise in their father's will. The question is one that this court has not previously passed upon. Our only decisions construing this statute are Ahrweiler v. Board, 226 Iowa 229, 283 N.W. 889, and Eysink v. Board, 229 Iowa 1240, 296 N.W. 376. Neither case is in point or in any way controlling here.
In the Ahrweiler case, the property was conceded to be a homestead and entitled to the tax credit for the year 1937. The issue was whether it was also entitled to credit against the 1936 tax, irrespective of the homestead character in 1936. We have no such question here. In the Eysink case, the board conceded that the claimant was plainly within the statutory definition of owner of a homestead when he showed that he occupied it under a deed which conveyed to...
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