Board of Sup'rs v. Sioux City Stock Yards Co.

• Decision Date: 15 June 1937
• Docket Number: 43839.
• Parties: BOARD OF SUP'RS v. SIOUX CITY STOCK YARDS CO.
• Court: Iowa Supreme Court

274 N.W. 17

223 Iowa 1066

BOARD OF SUP'RS v. SIOUX CITY STOCK YARDS CO.

No. 43839.

Supreme Court of Iowa.

June 15, 1937

Appeal from District Court, Woodbury County; F. H. Rice, Judge.

The Sioux City Stock Yards Company was assessed by the local assessor; objections to the assessment were filed with the local board of review; objections overruled. Objectors appealed to the district court of Woodbury county, filing a petition in which it was claimed an improper assessment because the stock yards company was assessed as a " merchant," and not as a corporation taxable under section 7008. Motion to dismiss was filed by the stock yards company. Motion sustained. Objectors permitted judgment to go against them, and appeal to this court.

Reversed and remanded.

A. W Johnson, of Sioux City, and Paul E. Roadifer and Addision G Kistle, both of Council Bluffs, for appellants.

Milchrist, Schmidt & Marshall and H. Clifford Harper, all of Sioux City, for appellee.

PARSONS, Justice.

This is the second time this case has been to this court. The first time it came up at the instance of the appellee herein. The only question involved in that appeal was of the service of the notice of appeal, and in that case the court held that the service of notice was proper. In re Sioux City Stock Yards Co. (Iowa) 268 N.W. 18.Matters then came on for hearing before the district court of Woodbury county, before Hon. F. H. Rice, presiding judge, and as the result of the court sustaining the motion to dismiss, in three divisions, the case was ended in that court without trial, and an appeal was again taken, and is now here for consideration.

The appellee herein, Sioux City Stock Yards Company, is a corporation doing business at Sioux City, Iowa, with its principal place of business there, and is subject to assessment for taxation purposes in Sioux City, Woodbury county, Iowa.

Prior to the adjournment of the local board of review for the year 1935, the members of the board of supervisors and said board, and Woodbury county, Iowa, filed with said local board of review objections to the assessment of the Sioux City Stock Yards Company for the year 1935. These objections were overruled by the district court, and an appeal was duly made to the Supreme Court, which affirmed the ruling of the lower court.

On the 28th day of August, 1935, appellants, board of supervisors, filed a petition in equity, setting forth and pointing out the matters complained of in regard to the assessment involved herein. The petition alleged that the Sioux City Stock Yards Company was incorporated, with its principal place of business at Sioux City, Iowa; that the company was the owner on January 1, 1935, of certain personal property, to wit, shares of the corporation stock of the Sioux City Terminal Railway Company, of the actual value for taxation purposes of $200,000; that it was the owner of shares of stock issued by the Sioux Falls Stock Yards Company, which was taxable in the sum of $380,000; and that in addition the company was the owner of personal property consisting of machinery, furniture, and fixtures, not listed for taxation, of a value greater than that assessed; that the assessor failed to assess all these stocks.

The petition pointed out in paragraph 7 that the personal property consisting of machinery, furniture, and fixtures should have been assessed at a valuation of $4,000 instead of the $2,000 it was assessed. There seems to be no radical variance between the objections set out before the Sioux City Board of Review and the objections set out in the petition.

In the objections before the board of review it was asked that there be added to the assessment rolls all of the shares of stock of the Sioux Falls Stock Yards Company of the value of $380,000, same to be taxed on the statutory basis; and that it also add to the assessment roll the stock of the Sioux City Terminal Railway Company at a value of $200,000; and that it also add the shares of stock in the Sioux City Stock Yards Company as against the company, as agent of the owners and holders, for the purpose of taxation, a valuation of $3,800,000. In other words, the objections asked that it add $4,380,000 to the assessment roll of the Sioux City Stock Yards Company.

The objections further set out that the corporation involved was assessable and subject to a tax by virtue of sections 7008-7013, inclusive, and that it had been assessed under sections 6971 and 6972 of the Code.

So that it appears that the only objections made before the board of review was as to the improper assessment under sections 7008-7013, inclusive, when it should have been under sections 6971 and 6972, and that no reference whatever was made in the objections filed before the board of review to the claimed failure to set out this stock in the assessment, or the nonlisting of personal property for taxation.

While it is true that the objections before the board of review did say that the board should proceed to make an assessment against the Sioux City Stock Yards Company and its property, etc., yet the objections also show that certain tangible personal property had not been mentioned in the objections, other than in the prayer. Nothing specific was pointed out.

The Sioux City Stock Yards Company filed before the court a motion to dismiss the appeal, based upon the result of certain proceedings had in the courts, and before the State Board of Assessment and Review concerning the assessment of 1933, in which the assessment of this company was involved. The court in ruling upon the motion held:

1. That the questions raised by the appellee's motion to dismiss are propositions of law which should be decided by the court.

2. That the motion to dismiss raises particular issues of fact which have been tried and determined in the case of F. Price Smith, County Treas. of Woodbury County, Iowa, v. Sioux City Stock Yards Company, 219 Iowa, 1142, 260 N.W. 531.

3. That it was apparent from the face of the petition and transcript that the same particular issues of fact, which have heretofore been tried and determined adversely to the appellant, are again raised in this proceeding.

The court ordered that divisions I, II, and III of said motion to dismiss be sustained, and the appeal dismissed, to all of which the appellants in this case excepted.

This ruling was entered on the 22d day of September, 1936, and on the 13th day of October, 1936, the appellants filed their election to stand on the petition; and on the same date the court entered its judgment and decree, dismissing appellants' petition, to which order the appellants herein excepted and gave proper notice of appeal, and the case is now before us for determination.

As before stated, the motion to dismiss was in three divisions, the first division setting up that the State Board of Assessment and Review had adjudicated that such stock was not subject to assessment, and that this was affirmed in the case of Smith v. Sioux City Stock Yards Co., 219 Iowa, 1142, 260 N.W. 531; and in Re Lytle Inv. Co., 219 Iowa, 1099, 260 N.W. 538, and that said appeal is one that cannot be taken by the officers of Woodbury county, and they cannot now litigate these matters which have been fully litigated before. The second division set up that defendants move that said appeal be dismissed as to any objection to, or request for, a levy by the city assessor upon the Stock Yards Company; holding that the decisions in the Lytle Case and in the Smith Case affirmed the judgment of the district court, as set out in Exhibit " C" attached. Division III set up that the Sioux City Stock Yards Company has been declared to be a mercantile company under the definition of section 6971 of the Code, for taxation purposes.

The appellant points out it is only where the defense arises on the face of the petition that a motion to dismiss is proper. A motion to dismiss is in effect a demurrer, and a speaking demurrer is unallowable. Citing sections 11130 and 11133; Frazier v. Wood, 215 Iowa, 1202, 247 N.W. 618, 619; Ritter v. Schultz, 211 Iowa, 106, 232 N.W. 830, 831; McPherson v. Commercial Bldg. & Sec. Co., 206 Iowa, 562, 218 N.W. 306.

In the Frazier Case the court says: " It is conceded, and properly so, that the motion to dismiss was the same, in effect, as a demurrer to the answer at law, or under former practice in equity."

In the Ritter Case the court says: " It is apparent that the appellant has misconceived the office of a demurrer. The matters urged at this point do not appear upon the face of the petition. A demurrer can apply only as to matters alleged in, and appearing upon the face of, the petition; it concedes that the averments of fact well pleaded in the petition are true; nothing else is considered by the court in the determination of a demurrer to the petition, other than the averments of the petition and the demurrer." It is held further in this opinion: " To render a petition demurrable on the ground that the cause of action therein stated is barred by the statute of limitations, it must affirmatively appear, from the averments of the petition, that the cause is so barred."

In the McPherson Case, it is held that judicial proceedings which are extraneous to a pleading which is demurred to may not be considered in ruling on the demurrer, either in the trial or the appellate court.

The matters undertaken to be set out in the demurrer, and which are not shown in the pleadings, are matters which appeared in what might be called the " transcript," which came over from the local board of review.

The transcript proper should consist of the assessment as made by the assessor; of the objections that were filed thereto; and of the ruling of the board of review on...