Beecher v. The County of Clay

• Decision Date: 24 October 1879
• Citation: 2 N.W. 1037,52 Iowa 140
• Parties: BEECHER v. THE COUNTY OF CLAY ET AL
• Court: Iowa Supreme Court

2 N.W. 1037

52 Iowa 140

BEECHER v. THE COUNTY OF CLAY ET AL

Supreme Court of Iowa, Des Moines

October 24, 1879

Appeal from Clay District Court.

THIS is an action for a writ of mandamus to compel the board of supervisors of Clay county to refund certain alleged illegal taxes which the plaintiff paid into the treasury of said county June 20, 1873, amounting to $ 310.05. The defendants plead the statute of limitations. The court found that there was no record evidence of a levy of the tax in question; that plaintiff had no actual knowledge that the tax was not regularly levied until 1877; that he made a demand upon the board of supervisors at their June meeting, 1878, for an order refunding said tax, which the board refused to issue that the action was commenced June 26, 1878, and that the board of supervisors had knowledge of the illegality of the tax in October, 1874. From these facts the court found that the tax in question is illegal, and that the plaintiff is entitled to have the same refunded to him, and that the statute of limitations does not commence to run against this action until the date of demand on June 8, 1878, the demand having been made within five years from the date of payment of said tax by the plaintiff.

The court adjudged that a peremptory writ of mandamus issue for the refunding of said tax. The defendants appeal.

REVERSED.

Ackley Hubbard and E. E. Snow, for appellants.

L. M Pemberton, for appellee.

OPINION

DAY, J.

The only question in the case is as to when the statute of limitations began to run. In Callanan v. The County of Madison, 45 Iowa 561, it was held that a cause of action accrues against the county at the very moment of the payment of illegal taxes, and that from that time the statute of limitations runs. This action is brought to compel a performance of the duty prescribed in section 870 of the Code, which provides: "The board of supervisors shall direct the treasurer to refund to the tax payer any tax, or any portion of a tax found to have been erroneously or illegally exacted or paid, with all interest and costs actually paid thereon." It cannot be doubted that immediately upon the payment of the illegal tax, the plaintiff might have demanded of the board of supervisors an order for the refunding of it, and that if such demand had been made the statute of limitations would at that time have begun to run against an action for a writ of mandamus. The question now presented is, can the plaintiff, by neglecting to demand of the board an order for the refunding of the taxes, delay the running of the statute of limitations? This question was...