Bogue v. Laughlin

• Decision Date: 23 April 1912
• Citation: 136 N.W. 606,149 Wis. 271
• Parties: BOGUE ET AL. v. LAUGHLIN, VILLAGE TREASURER, ET AL.
• Court: Wisconsin Supreme Court

149 Wis. 271

136 N.W. 606

BOGUE ET AL.

v.LAUGHLIN, VILLAGE TREASURER, ET AL.

Supreme Court of Wisconsin.

April 23, 1912.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by Allan Bogue and others, as executors of Hugh Sloan, deceased, against Edward V. Laughlin and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded, with directions to enter judgment for defendants upon their counterclaim.

This action was brought to restrain the collection of a tax levied in 1907 for the years 1904, 1905, and 1906 upon property alleged to have been omitted from the roll in such years, and determine its validity and recover possession of personal property seized under a warrant for the collection of such tax, prevent the commencement of other action for the collection of the tax, and for general relief. The defendants answered by admissions and denials of the allegations of the complaint, and also, by way of counterclaim, set up the proceedings resulting in assessment of the tax upon the property omitted for the years in question. There was a reply to the counterclaim. The court found:

That Hugh Sloan was a resident of the village of Poynette during the years 1904, 1905, and down to October 23, 1906, on which date he died. That thereafter his will was duly proved and allowed in the county court, and in December, 1906, letters testamentary thereon were duly issued out of said court to the plaintiffs Allan Bogue, Wm. Dunlop, and Chas. Mair, who ever since have been and now are acting as executors of said estate. That said executors have at all times since their appointment resided within the village of Poynette. That said Hugh Sloan made to the several assessors of said village for each of the years 1904, 1905, and 1906 his sworn statement of valuation of the net average amount of money and credits owned by him in each of these years, other than debts secured by mortgages or conveyances of real estate, as follows: 1904, $5,500; 1905, $5,500; 1906, $5,000. Said statement was in a gross sum, and not itemized, and constituted in each instance a gross and fraudulent omission and misstatement thereof, to the knowledge of deceased. That said Hugh Sloan was not required by assessors to give, and did not give said assessors or the several boards of review for said years, any statement of any particular items of which his said property was composed, nor any list of securities owned by him. That no other statement was required of him in either of said years.

That the several assessors of said village placed said several amounts upon the assessment rolls of said village in said years, and assessed and valued the same as the net average of moneys and credits of said Hugh Sloan liable to taxation for said years. That said statements of money and credits for said several years were received by said assessors, and no change made therein by said boards of review. That thereafter said amounts were spread upon the assessment and tax rolls of said village for said years, respectively, as the net average amount of money and credits of said Sloan, other than mortgages exempt from taxation. That said Sloan paid all taxes thereon in due season for the years 1904 and 1906, and the executors of his estate paid the tax thereon for the year 1906. That on May 1, 1907, the plaintiffs, as such executors, had in their possession in said village the personal property belonging to the estate of said Sloan, no distribution thereof having been then made. That the time for presenting claims against the estate of said Sloan was limited to June 10, 1907. That the time fixed for hearing claims against said estate was June 11, 1907. That no claims were then presented to the county court against said estate. In the year 1907, said executors made to the assessors of the village a statement of the value of the net amount of money and credits of said estate in their hands liable to taxation at $14,000. That they made no statements of property formerly owned by said Sloan liable to assessment in the years 1904, 1905, and 1906, and were not asked to make any such statements. On June 25, 1907, the board of review of said village caused to be served upon said executors a notice to appear before said board on June 28th. That said executors appeared on said day and several subsequent meetings of the board, and discussion of the matters of assessment and alleged “back taxes” was had. On July 25, 1907, the executors were notified, in writing, that the board would be in session July 26, 1907, to hear evidence relating to the true value of the Sloan estate, for which it is liable to assessment for the years 1904, 1905, 1906, and 1907. That at the meeting of the board of review, July 26, 1907, various persons, including two of the executors, were examined. That the executors offered no proofs as to the actual taxable credits of deceased or his indebtedness during any of said previous years. One of the executors declined to be examined, except as to his own indebtedness to the estate. That on August 1st another meeting of the board was held, at which one of the executors was sworn. At the conclusion of the meeting, a motion was made by a member of the board that “by the evidence that is before us in regard to the Hugh Sloan estate, the assessor place upon the assessment roll against the executors [[[naming them] on which taxes have not been paid for the year 1904, $12,240, and for the year 1905, $16,895, and for the year 1906, $20,495, and also raise the assessment for the year 1907, $12,500.”

That on August 2, 1907, a notice was served on plaintiffs, informing them that the board “had found and determined the fact to be that said estate should be assessed upon like account (the value of net amount of moneys, accounts, credits, etc., for omissions for the year 1904, $12,240, for 1905, $16,895, and for 1906, $20,495,” and that the executors might be heard respecting the same; that at the meeting of August 3d the plaintiffs appeared and asked for an adjournment, but were refused, and the board adjourned sine die that day; that thereafter the assessor entered the assessments upon the assessment roll of said village for 1907, in the column headed “Moneys, Accounts, Credits, Bonds, and Other Securities After Deducting Bona Fide Debts,” in the following form: “Net amount of moneys, credits, accounts, bonds, notes and other securities after deducting bona fide debts. Chas. Mair, W. Dunlop and Allan Bogue, executors of the estate of Hugh Sloan. Value as fixed by board of review June 28, 1907, $25,000.00. The value of June 28, 1907, was made arbitrarily and not upon evidence. The board of review after taking the testimony of witnesses and being informed as to the facts, and after due consideration of the same, determined and fixed the valuation for the year 1907, at the sum of $26,500.00. And in accordance with their findings, such sum is entered here accordingly. Upon like evidence, and upon knowledge of the facts, and upon due consideration, the board has found and determined the fact to be that said estate should be assessed upon like accounts for omissions for the year 1904, $12,240.00, and for the year 1905, $16.895.00, and for the year 1906, $20,495.00.” That no assessment for the year 1907, or preceding years, was entered by the assessor prior to the meeting of the board of review. That taxes were extended upon the tax roll of said village for the year 1907 against said assessed valuation omitted property, as follows: For the year 1904, $117.25; for the year 1905, $264.57; for the year 1906, $393.50; and for the property of estate for 1907, $429.56.

That no claim for taxes in question was filed in the county court against said estate, except that on December 26, 1907, a petition for this payment, under section 1044d of the Wisconsin Statutes, was filed in county court by defendants, which petition was heard by the court January 14, 1908, and decided on the ground that said section had no application to the facts in the case, the deceased and the executors having at all times been residents of the same taxing district, and the property of the estate was in the possession of the executors therein.

That no appeal was taken by the defendants from said order dismissing said claim. That defendants sued an alternative writ of mandamus out of this court, requiring the county court to act upon said petition, or show cause to the contrary. That the county court made return to said writ, and this court quashed said writ upon said return showing that the county court had decided the matter upon said petition. That no appeal was taken from the judgment quashing said writ. That thereafter, and on February 25, 1908, the defendant treasurer began a suit in this court to recover of the plaintiffs the taxes upon said assessments, which suit is still pending, though no complaint has been served. That on the same day on which service of summons in said mentioned suit was made, but after service of summons therein, the defendant treasurer made a levy under his tax warrant on the following personal property, to wit: From said Allan Bogue, one organ which was not the property of said Bogue, but belonged to his daughter; from W. Dunlop, one horse, one buggy, one cutter, belonging to said Dunlop individually. That none of said property so seized had ever belonged to Hugh Sloan or his estate. That the property so levied upon was of the value of about $400. That one of said executors had at that time personal property of his own within reach of said treasurer to the amount and value of $2,000. That thereupon said treasurer advertised said property so levied upon for sale at auction to pay said taxes. That further levies were threatened by said treasurer and the attorneys who were then acting for him. That said executors had at all times after their appointment sufficient personal property belonging to said estate in their hands to...