Bankers' Life Ass'n of Des Moines v. Bd. of Com'rs of Douglas Cnty.

• Decision Date: 23 January 1901
• Citation: 85 N.W. 54,61 Neb. 202
• Parties: BANKERS' LIFE ASS'N OF DES MOINES, IOWA, v. BOARD OF COM'RS OF DOUGLAS COUNTY.
• Court: Nebraska Supreme Court

61 Neb. 202

85 N.W. 54

BANKERS' LIFE ASS'N OF DES MOINES, IOWA,

v.BOARD OF COM'RS OF DOUGLAS COUNTY.

Supreme Court of Nebraska.

Jan. 23, 1901.

Syllabus by the Court.

1. One who seeks to avail himself of the statutory right to recover from a county taxes not paid under compulsion must show a substantial compliance with the statute.

2. In such case the party must state specifically to the tax collector the ground of his objection, and have it noted in the tax receipt, which is to be attached to the claim filed with the county board.

3. In an action to recover taxes paid under protest, the claimant must allege in his petition and prove at the trial that he made specific objection to the tax at the time he paid it.

4. In the absence of a bill of exceptions duly allowed, this court cannot consider the evidence adduced at the trial.

Error to district court, Douglas county; Slabaugh, Judge.

Action by the Bankers' Life Association of Des Moines, Iowa, against the board of county commissioners of Douglas county Judgment for plaintiff for part of its claim, and it brings error. Affirmed.O. B. Ayres, for plaintiff in error.

H. L. Day, for defendant in error

SULLIVAN, J.

This action, according to the averments of the petition, was brought by the Bankers' Life Association of Des Moines, Iowa, to recover the sum of $108.13, which it paid to the treasurer of Douglas county to prevent the enforcement of what is claimed to be a void tax. The cause was submitted upon an agreed statement of facts, from which the court found that the plaintiff had paid the money as alleged, and was entitled to recover the sum of $42.38; that amount having been “erroneously collected.” From a judgment rendered in accordance with the findings, the association prosecutes error. We are of opinion that the petition is defective in substance, that it does not state a cause of action for any part of the money paid to the county treasurer, and that the county would be entitled to a reversal but for the fact that it has acquiesced in the decision. It is not alleged in the petition or claimed by counsel for the association that the ground of protest was stated to the treasurer at the time the tax was paid. Such a statement is required by the statute, and is an essential step in the proceeding to recover money paid in satisfaction of a void tax. City of Omaha v. Kountze, 25 Neb. 60, 40 N. W. 597;Davis v. Otoe Co., 55 Neb. 677, 76 N. W. 465. Section 144 of the revenue law (chapter...