Barhydt v. Cross
| Decision Date | 06 June 1912 |
| Citation | 136 N.W. 525,156 Iowa 271 |
| Parties | T. W. BARHYDT, Appellee, v. W. C. CROSS ET AL., Appellants |
| Court | Iowa Supreme Court |
Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.
APPEAL from a decree of the district court canceling an assessment against plaintiff, Barhydt, of $ 250,000 on moneys and credits for the year 1910.
Reversed.
Poor & Poor, for appellant.
Blake & Wilson, for appellee.
The facts are not in dispute. We quote from appellant's brief such as are deemed controlling.
Prior to October 8, 1909, T. W. Barhydt resided at No. 420 Iowa street, in the city of Burlington, Iowa; the same being an eleven-room brick house, with brick laundry and barn, on a lot 180 x 117 feet, where he had lived continuously for over forty years. On October 8, 1909, while still living in that house, he and his wife started on a trip of travel, study, information, and sightseeing around the world via New York, the Suez Canal, Egypt, India, China, Japan, and Hawaii; the destination being San Francisco, Cal. He left his furnished home at Burlington in charge of a caretaker. After leaving New York, the only place where they were in territory controlled by the United States before reaching their destination was at Manila, Philippine Islands, on December 19, 20, and 21, 1909, and at Honolulu January 23 and 24 1910. They reached San Francisco, Cal., on January 31, 1910 where their water trip ended; and, after resting a few days there, they went direct to Los Angeles and Pasadena, Los Angeles county, Cal., spending part of the time in each place, while Mr. Barhydt looked over different properties he had in view to purchase, first purchasing No. 90 South Grand avenue, Pasadena, late in March. At the same time, he had made an offer on No. 969 San Pasqual street, Pasadena, which was accepted within a few days, both of which properties he owns now. Mr. Barhydt remained in Pasadena until April 15th, when he and his wife returned to Burlington, and such portions of the summer as they were in that city occupied No. 420 Iowa street, their old home, and lived there until December 20, 1910. At the date of the trial below, March 7, 1911, his house and furniture in Burlington were in charge of a caretaker. Prior to this trip around the world, they were accustomed to spend most of their winters in Burlington, taking occasional trips, but never going away before February or March.
At the time of taking Mr. Barhydt's deposition (January 30, 1911), he was living at No. 969 San Pasqual street, Pasadena, Cal., having occupied that house since December 23, 1910, the house having been purchased in March, 1910; and Mr. Barhydt took possession of the same by placing a caretaker in charge of it on April 22, 1910. Mr. Barhydt testified that he left Iowa with the purpose and intention of ceasing to have a residence and domicile there, on October 8, 1909. Previous to leaving Burlington, he said he looked up several places in California in view of becoming a resident and citizen of that state.
An assessment was made against Barhydt by the assesssor for the year 1910 of two dogs, one horse, three vehicles, and household furniture amounting of $ 1,000, and on this assessment roll was a statement that Barhydt lived at Pasadena, Cal. And also the following statement: "I own twenty shares of Merch. Nat. Bank stock, and demand that my indebtedness be deducted from value of personal property." On this roll Barhydt also listed his debts, which he claimed amounted to $ 47,741. This roll was made out for Mr. Barhydt by his attorney, and was returned by the assessor to the board of review.
When the matter reached the board of review, it changed the assessment, as follows: The $ 2,000 is scratched out, and written below said $ 2,000 are the figures "$ 1,000"; such change being made in red ink.
Against this change the plaintiff filed the following protest with the board:
This was supported by an affidavit of Barhydt made on the 22d day of April, 1910, in which he said:
I am not now, and I was not on the 1st day of January, 1910, nor at any time since said date, a resident of the state of Iowa; that I removed from the state of Iowa to the state of California, leaving Iowa on the 8th day of October, 1909, and at no time since said date have I been, nor am I now, a resident of the state of Iowa but am a resident of the state of California. My removal from the state of Iowa was in good faith; and I have no purpose of again becoming a citizen or resident of Iowa. I further state that on the 1st day of January, 1910, I was not the owner of moneys and credits, subject to taxation in Iowa aside from national bank stocks and savings bank stocks, said bank stocks all being taxable only at the place of the location of the bank, and all being paid by said banks; nor did I have in my possession, nor did I own, any moneys and credits in any sum issued by any Iowa corporation or other Iowa resident, or in any manner secured by Iowa property, save and except two mortgages, one for $ 3,000 and one for $ 1,000, and on said January 1, 1910, I was indebted, as stated in my original return, in excess of the sum of $ 47,000, more than one-half of which indebtedness was due and owing to Iowa creditors. As to household furniture, I have paid taxes on household furniture at a valuation of something like $ 1,000 for very many years. My taxable household furniture is very old and worn, and its taxable value does not exceed the sum which I returned, to wit, $ 1,000. And further deponent sayeth not.
This protest was unavailing, and plaintiff appealed to the district court, and upon trial there the assessment on moneys and credits in the sum of $ 250,000 was canceled. Plaintiff at that trial introduced no testimony showing, or tending to show, that he did not have the amount of moneys and credits with which he was assessed. On the contrary, his testimony was directed wholly to the issue as to his residence on January 1, 1910.
The appeal for and on behalf of the defendants challenges the ruling of the trial court in canceling the assessment on moneys and credits. As no testimony was adduced by plaintiff showing that he was not possessed of the amount of moneys and credits with which he was assessed, the finding of the trial court can not be sustained on the theory that defendants offered no evidence that he had such property subject to taxation. King v. Parker, 73 Iowa 757, 34 N.W. 451.
II. In support of the court ruling, it is contended that the assessment made by the board of review can not be sustained, because it was upon moneys and credits, without specification as to items. The exact point here is that the board acts simply as and for the assessor; and that, as it was the duty of the assessor to list the kind and character of items under the head of moneys and credits, as, notes, bonds, money in bank, book accounts, etc., so it was the duty of the board to do likewise; and that its assessment of "Moneys and credits raised from nothing to $ 250,000" is irregular and illegal, and should be set aside. The statute provides for such a listing by the assessor (see Code Supp., section 1360), with forms there given. But this seems to be largely for convenience, in order that it might be deducted from the net amount as brought forward onto the roll in another place. There is no provision of this kind with reference to the action of the board of review. Without passing upon the necessity for such a course, it is enough for the present to say that in making his protest before the board of review plaintiff made no such claim as is now insisted upon. We have fully set forth all the specifications contained in that protest; and none of them, as it seems to us, covers the matters now under consideration. That plaintiff is confined to the objections there made is elementary. Brown v. Grand Junction, 75 Iowa 488 at 489, 39 N.W. 718; Railway Co. v. Cedar Rapids, 106 Iowa 476 at 477; Gibson v. Cooley, 129 Iowa 529, 105 N.W. 1011; Farmers' Bank v. Fonda, 114 Iowa 728, 87 N.W. 724.
By no stretch of the imagination can it be said that the question as to the validity of the schedule was made before the board. It is quite important that such objection be made before the board, in order that it may make a correction at the time, and thus require of the taxpayer that he bear his just proportion of the burdens. Unless so made, he should ever after hold his peace, and not be allowed to question the form of the assessment.
III. But a single question is left, and that the primary one: Was Barhydt domiciled at Burlington on January 1, 1910, or had he such a residence there as subjected his property to taxation in that district? It is...
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