Billinghurst v. Spink County

• Decision Date: 03 March 1894
• Parties: BILLINGHURST v. SPINK COUNTY et al.
• Court: South Dakota Supreme Court

58 N.W. 272

5 S.D. 84

BILLINGHURST v. SPINK COUNTY et al.

Supreme Court of South Dakota

March 3, 1894

Syllabus by the Court.

1. Rule 13 of this court, in effect, provides that respondent may bring alleged defects or imperfections in appellant's abstract to the attention of this court by serving and submitting a further or additional abstract, and unless the method therein provided is pursued, and such an abstract is provided, which denies the correctness of the abstract filed by appellant, the latter must be taken as true; and an affidavit denying service of the notice of appeal, submitted with a motion to dismiss, cannot be considered, but the question must be decided upon the record properly before us.

2. One who owns personal property in this state, subject to taxation, that has not been assessed, is charged with a knowledge of the statute which requires the board of equalization, at its annual meeting, and at the time and place fixed by law, to place such omitted property upon the assessment roll, and enter therefor a reasonable, just, and uniform taxation; and he is also presumed to know that such statute provides that he may apply to such board in person or by his agent or attorney, at any time during its session for a correction of any alleged errors in the listing or valuation of his property, and in such cases a notice to such owner is not necessary.

3. A nonresident who sends money into this state, and surrenders its possession and control to agents fully authorized to loan, invest, and manage the same, thereby subjects such property to the jurisdiction of this state for the purposes of taxation; and the legal fiction that the situs of such property is at the domicile of the owner yields to the requirements of justice, and the actual situs is the place where the property is actually situated and employed in business, and where such agents reside.

Appeal from circuit court, Spink county.

Action by Hannah Billinghurst against the county of Spink and W. C Kiser, county treasurer, for an injunction. There was a decree for plaintiff, and defendants appeal. Modified and affirmed.

Avant v. Flynn, (S. D.) 49 N.W. 15, distinguished.

Sterling & Morris and E. B. Korns, for appellants. Howard & Walsh and D. W. Poindexter, for respondent.

FULLER J.

The object of this suit is to enjoin the collection of an alleged personal tax of $1,300 placed upon the assessment roll by a county board of equalization, and to restrain a sale of certain real estate for such tax, owned by plaintiff, and situated in the county of Spink and state of South Dakota. There was a decree for plaintiff, and the defendants appeal.

Plaintiff's counsel moved to dismiss the appeal because the notice of appeal was not served on the plaintiff, and for that reason this court never acquired jurisdiction. To this preliminary question we will first direct our attention. The printed abstract, at page 10, contains the following: "That thereafter, on the ______ day of September, 1892, the defendants perfected an appeal to the supreme court of the state of South Dakota, by serving upon the plaintiff and the clerk of the circuit court in and for said county of Spink a notice of appeal." Rule 13 of this court provides ample means by which alleged errors or imperfections in appellant's abstract may be remedied and brought to the attention of this court, and unless the methods therein specified are pursued, and an additional or supplemental abstract is provided by respondent, in accordance with such rule, which denies the correctness of the abstract filed by appellant, the latter must be taken as true. Irrigation Co. v. Schone, (S. D.) 50 N.W. 356; Noyes v. Lane (S. D.) 48 N.W. 322. The abstract which our rules require is designed to take the place of the record for the purposes of the argument and decision of the case to which it relates; and when such an abstract has been prepared by an appellant, and filed in this court, in accordance with such rules, and recites, in substance, that defendants perfected an appeal to this court by serving upon the plaintiff and the clerk of the circuit court of the county in which the case was tried a notice of appeal, such recital will be accepted by this court as true, unless it be denied by an amended or supplemental abstract. Gates v. Brooks, 59 Iowa, 510, 6 N.W. 595, and 13 N.W. 640; Hardy v. Moore, 62 Iowa, 65, 17 N.W. 200; Farmer v. Sassen, 63 Iowa, 110, 18 N.W. 714. An affidavit denying service of the notice of appeal upon plaintiff, submitted with a motion to dismiss, cannot be considered. This question must be decided upon the record, and the motion to dismiss the appeal is therefore denied.

Concerning the facts upon which this appeal depends, there is but little contention; and, as the evidence is not before us, we must conclude that the facts found by the court are sustained by the evidence. From the material and uncontroverted allegations of the complaint we obtain the following facts: Plaintiff, at all times hereinafter mentioned, and for more than 20 years prior thereto, has been a resident and citizen of the state of Wisconsin, and has never resided in the territory of Dakota, nor in the state of South Dakota. That she is the owner of certain lands situated in Spink county, S. D., and that the defendant W. C. Kiser, as treasurer of said county, has advertised and intends to sell said real estate on the 3d day of November, 1890, for alleged delinquent personal taxes, amounting to $1,300. That upon the assessment rolls returned by the various assessors of Spink county for the year 1887 the name of the plaintiff did not appear upon the list of personal property, and no personal property was therein listed as the property of the plaintiff. It appears that the board of equalization acted upon the theory that the firm of Billinghurst Bros., as agents of the plaintiff, had in their possession or under their control, within the said county of Spink, on the 1st day of April, 1887, certain money, notes, and mortgages belonging to the plaintiff, and that said agents of the plaintiff were engaged in a general banking business on their own account, and in loaning and collecting plaintiff's money. There seems to be some dispute about the amount of said money and bills receivable, and the aggregate value thereof; but the board of equalization, on the 11th day of August, 1887, without notice to plaintiff, valued and assessed the same at $18,000, and caused such amount to be placed upon and added to the assessment roll, as the personal property of plaintiff subject to taxation in Spink county for the year 1887; that plaintiff has not paid the same, or any part thereof, which, with interest and penalty, according to such assessment, amounts to $1,300. Upon these undisputed facts, and the evidence offered upon the trial, the court based the following findings of fact and conclusions of law, and entered judgment accordingly:

Findings of fact: "(1) That the plaintiff, at the time of the assessment complained of, was the owner of the N. E. 1/4 of section 6, township 119, range 61 W., and the N. E. 1/4 of section 32, township 119, range 61, and the S. E. 1/4 section 7, township 118, range 63, all in said Spink county. (2) That there were no real-estate taxes due on said land at the time of the acts of the board of county commissioners hereinafter referred to. (3) That the plaintiff is, and was at all times hereinafter referred to, a nonresident of this state, but had sums of money at and prior to the 11th day of August, 1887, and on the 1st day of April of said year, in the hands of her sons, C. B. Billinghurst and W. S. Billinghurst, doing business as the Billinghurst Bros., at Ashton, in said county, for investment, or actually invested, in notes and mortgages on property in said county, and that her said sons were acting as her agents in loaning and investing the same, said sum amounting to $6,000. (4) That no assessment of said property, or of any personal property of the plaintiff, was made by the assessor of said county during the year 1887, and the assessment roll for said county for said year was returned to the county auditor, showing no assessment against the plaintiff for personal property of any kind; but said C. B. Billinghurst, for said Billinghurst Bros., returned, under oath, that said Billinghurst Bros. had no other property belonging to them, or by law required to be listed by them for the year 1887, as agents or otherwise, for any other person, than the sum of $3,230; that none of said $3,230 was the property of the plaintiff. (5) That the board of county commissioners, sitting as a board of equalization, on the 11th day of August, 1887, placed, or ordered to be placed, on said assessment roll, an assessment against plaintiff of $18,000, for personal property; that no notice of said entry, or of intention to place the same upon the assessment roll, was ever given to plaintiff or her said agents, except that the delinquent list of taxes was published, wherein it was advertised that the lands in section 1 hereof were advertised for sale for personal taxes. (6) That at the time this action was begun the defendant Kiser was about to sell said lands for said unpaid personal tax."

Conclusions of law: "(1) That the action of the board of county commissioners, in placing the said assessment upon the roll without notice to the plaintiff or her agents, was irregular and illegal. (2) That the said assessment is null and void and said plaintiff is entitled to have the same set aside. (3) That the county treasurer has no authority to sell plaintiff's land or to advertise the same, and plaintiff is entitled to have him restrained from selling the same. (4) That plaintiff is entitled to a judgment in accordance with the...