Brule County v. King

• Decision Date: 18 November 1898
• Citation: 77 N.W. 107,11 S.D. 294
• Parties: BRULE COUNTY v. KING.
• Court: South Dakota Supreme Court

77 N.W. 107

11 S.D. 294

BRULE COUNTY v. KING.

Supreme Court of South Dakota

November 18, 1898

Appeal from circuit court, Brule county; Frank B. Smith, Judge.

Action by Brule county against Martin K. King to recover personal taxes. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Haney J., dissenting.

S. H Wright, for appellant. Edwin Greene and George H. King, for respondent.

CORSON P. J.

This is an appeal from an order sustaining a demurrer to the complaint, and from a judgment entered thereon. The demurrer was interposed upon the following grounds: (1) That the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff alleges in its complaint "(2) that for the following named years the following amounts of personal taxes had been duly and legally levied had accrued, and remained unpaid upon the tax books of plaintiff county, for state, county, city, and school purposes, against said defendant, on the 23d day of January 1896, to wit." The taxes for the years from 1886 to 1894, inclusive, are specified, aggregating over $200. It is further alleged that these respective sums, with interest and penalty, were still wholly unpaid. It then alleges: That on the 3d day of January, 1896, the treasurer of Brule county seized and took into his possession the steamboat Last Chance, of the value of $2,000, the property of the defendant, and advertised it for sale to pay said taxes, penalty, and interest. That afterwards, on January 30th, and after the aforesaid property had been seized and advertised for sale by said county treasurer, M. J. King, J. L. King, and J. H. King having on or about said last-mentioned day libeled said steamboat in the United States district court for the district of South Dakota, the same was seized and taken into possession by the United States marshal, under process from said district court. "(4) That subsequently, to wit, on the 29th day of February, 1896, the said defendant desiring to release his said steamboat, with her appliances, equipments, etc., from the proceedings commenced as aforesaid in the United States district court, which were then still pending in said court, for a good and valid consideration made and entered into a contract and stipulation in writing with the plaintiff county and its treasurer, whereby it was stipulated and agreed by and between him, the said defendant, and the said plaintiff that the said proceedings in the United States court might be dismissed, and the said steamboat and its attachments, equipments, etc., released from the custody of the United States marshal; and it was also, and as a part of said stipulation, agreed between said plaintiff and defendant that his liability, and the liability of said steamboat, and its tackle and attachments, etc., for the payment of said taxes, or any part thereof, might be submitted to the circuit court of said county of Brule for its decision touching the liability of said defendant and the said property to the payment of said taxes, and that said circuit court 'may determine such liability for taxes, and that when such liability is fixed and established, and if it should be determined that any liability exists, either in whole or in part, that then and in that event the said Martin King will pay such sum as may be fixed and established, together with the costs of such action and proceeding as may be taken."' The fifth and sixth paragraphs of the complaint are as follows: "(5) Plaintiff further shows unto the court that the distinct understanding and agreement between the plaintiff and defendant was that if said taxes, or any portion of the same, should be held to be a legal charge against the said defendant or his said property, that he should be held liable by an action to be brought in this court; and plaintiff now charges that each and every of the sums set forth in paragraph 2 of this complaint, with the interest and penalties prescribed by law, were due, payable, and legal charges against the said defendant and his property on the said dates set forth in paragraphs 3 and 4 of this complaint, and that such sums had become a valid lien on said steamboat, its attachments, boats, tackle, etc., by virtue of the seizure, distraint, and levy hereinbefore set forth, and that such lien was preserved and kept intact in the United States district court in the aforesaid libel proceedings, and that such lien was only released upon the distinct agreement that the defendant should be held personally liable for any such sum as might be found due by him, or on account of his property. (6) That prior to the commencement of this action demand was made upon the defendant to pay the said sum, with interest and penalties due, but that he refused to pay the same, or any part thereof, and the whole thereof is now due and unpaid." And the...