Boyce v. Stevens

• Decision Date: 28 July 1891
• Citation: 86 Mich. 549,49 N.W. 577
• Court: Michigan Supreme Court
• Parties: BOYCE v. STEVENS.

49 N.W. 577

86 Mich. 549

BOYCE v. STEVENS.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Action in replevin by Jonathan Boyce against Samuel H. Stevens. Judgment for defendant. Plaintiff brings error. Affirmed.

F. W. Cook, for appellant.

De Long & O'Hara, for appellee.

MORSE J.

This is an action of replevin brought to recover possession of two piles of lumber taken by the treasurer of the city of Muskegon under a tax roll and warrant for the year 1889, upon which he claimed there was due from the defendant for taxes interests, costs, and fees the sum of $232.66. This tax is now conceded by plaintiff's counsel to be correct. The defendant also claimed to take and hold the property under a delinquent tax-warrant issued March 5, 1889, by the treasurer of Muskegon county, based on the return of delinquent taxes from the township of Lakeside on the tax-roll of 1888. The township of Lakeside was annexed to and became part of the city of Muskegon by an act of the legislature dated March 5 1889, which act took immediate effect. Under this warrant the defendant claimed $864.98. The court directed a verdict for the full amount claimed upon both warrants. The plaintiff here disputes the validity of the Lakeside tax, and asks a reduction of the judgment to the sum of $232.66, the amount of the city tax. The counsel for plaintiff attacks the warrant of the county treasurer. The affidavit to the return of the township treasurer of Lakeside is claimed to be defective, in that it fails to state the "amount of all moneys collected by him on account of taxes," in conformity to section 44 of Act 153 of the Laws of 1885, ^[1] nor that the amount of moneys so collected by him upon such tax-roll is truly stated. An inspection of the affidavit shows that it is in conformity to the statute, except in the respect claimed. The plaintiff relies upon the case of Port Huron v. Potts, 78 Mich. 435, 44 N.W. 289, but in that case not only was this part of the affidavit omitted, but it contained no statement that the sums returned as uncollected remained unpaid, nor that the collector was unable to find any goods or chattels out of which to make the tax. These last two omissions were vital, and concerned the plaintiff, whose tax was returned as uncollectible. It failed to show on oath that he had failed to pay the tax, or that the treasurer had been unable to collect it. In the present case these facts were shown. I fail to see how the omission in this case to state the whole amount of moneys collected by the treasurer, and that the same was truly stated, could prejudice the plaintiff, or why it concerned him in any way. His counsel in his brief says "Just why this is required I am unable to discover, but I submit it is sufficient that the legislature saw fit to make the distinction" (in the facts to be stated in a return of real and personal delinquent tax;) "and, as the legislature had the power to determine what facts should be stated, and have so determined, this court is bound by that legislative determination." But the same legislature of 1885, in section 89 of the same act, provided that no tax shall be held invalid on account of any irregularity in the assessment, or on account of any assessment or tax-roll not having been made, or proceedings had, within the time required by law, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance, in any proceeding that does not prejudice the rights of the person whose property is taxed. In this case the record shows that the property of plaintiff was legally assessable, for the year 1888, in the township of Lakeside, and that the tax has not been paid. There is no attempt to show that the tax was illegal or unjust;...