Burns v. McNally

• Court: United States State Supreme Court of Iowa
• Writing for the Court: KINNE
• Citation: 90 Iowa 432,57 N.W. 908
• Decision Date: 07 February 1894
• Parties: BURNS ET AL. v. MCNALLY, MAYOR, ET AL.

90 Iowa 432
57 N.W. 908

BURNS ET AL.
v.
MCNALLY, MAYOR, ET AL.

Supreme Court of Iowa.

Feb. 7, 1894.

Appeal from district court, Howard county; L. O. Hatch, Judge.

Appeal from the judgment of the district court reducing the amount of plaintiffs' assessment on moneys and credits.

[57 N.W. 909]

H. T. Reed, for appellants.

John McCook, for appellees.

KINNE, J.

1. The material facts in this controversy are: That plaintiffs are the executors of the last will of one J. S. Hastings, deceased, who at the time of his death was, and for many years prior thereto had been, a resident of the incorporated town of Lime Springs Station, in Howard county, Iowa. Defendants are the mayor, assessor, and trustees of said town, and the auditor of the county. In 1892 the assessor of said town assessed the estate of said Hastings with $5,000 moneys and credits for that year. Plaintiffs claim said estate had no moneys and credits that year which were assessable in that town. That they appeared before the equalization board to have said assessment canceled, but said board refused to do so, and returned the assessor's books to the county auditor with said assessment unchanged. Plaintiff Burns is a resident of said incorporated town. Plaintiff Webster is a resident of Cresco, in the same county. Plaintiffs, as the executors of said estate, were on January 1, 1892, and ever since have been, the joint possessors of moneys and credits of said estate in the sum of about $15,000. That the incorporated towns of Lime Springs Station and Cresco are separate assessment districts in Howard county. That the classification of this kind of property by the board of supervisors of said county for 1892 was on the basis of one-third of its value. That most of the funds of said estate consisted of notes and mortgages for money which had been loaned out by Hastings in his lifetime, and by his executors under his will, and by order of court; and all such notes and mortgages were, on and prior to January 1, 1892, kept at Cresco, under the immediate control of said Webster, one of the executors. That at the same time there was about $1,100 in money belonging to said estate on deposit in a bank at Cresco in the name of said executors. That Burns had in his possession at Lime Springs Station about $150 belonging to said estate. That said $1,100, and said notes and mortgages, while under the control of both executors, had been taken to Cresco, because Webster, by agreement between him and Burns, was to look after the investment of the funds belonging to the estate, and Burns was to have charge of the real estate of the deceased. That the assessment of $5,000 on the estate's moneys and credits was made by the assessor of Lime Springs Station without the knowledge or consent of the executors. That the same estate was assessed for the same year, in the same amount, on the same moneys and credits, in the town of Cresco, except the $150 which was in Burns' hands at Lime Springs Station. On appeal to the district court defendants moved to dismiss the appeal, claiming that plaintiffs never appeared before the board of equalization of Lime Springs Station to object to the assessment, and that the board never acted on said assessment, and there was nothing to appeal from. The motion was overruled, and the court ordered the assessment reduced to $50. From this action of the court the appeal is prosecuted.

2. There is but one question of fact in this case upon which the parties are not agreed. It is contended by plaintiffs that they appeared before the board of equalization of the incorporated town of Lime Springs Station at the proper time, and objected to the assessment. Defendants deny that any sufficient objection was ever made. As the right of appeal to the district court is obtained only by an appearance before the board of equalization, and the making of proper objections to the assessment, it is necessary to determine the question thus presented. The statute provides: “The township trustees shall constitute a board of equalization for their respective townships and have power to equalize the assessments of all tax payers within the same, except in such cities and incorporated towns as elect a township assessor, in which case the city council shall be the board of equalization, and shall perform such duties in substantially the same manner as is required of a township board of equalization, by increasing or diminishing the valuation of any piece of property, or the entire assessment of any tax payer, as they may deem just and necessary for an equitable distribution of the burden of taxation upon all the property of the township: provided that such boards shall keep a record of their proceedings.” Code, § 829. “Any person who may feel aggrieved at anything in the assessment of his property, may appear before said board of equalization in person, or by agent, at the time and place mentioned in the preceding section and have the same corrected in such manner as to said board may seem just and equitable, and the assessors shall meet with said board and correct the assessment books as they may direct. Appeals

[57 N.W. 910]

may be taken from all boards of equalization to the district court of the county wherein the assessment is made, within sixty days after the adjournment of such board of equalization, but not afterward.” Id. § 831. Plaintiff Burns testified that he went before the board of equalization at their meeting in April. That they asked him what he was going to do about the assessment. He told them that he did not know; that it had been assessed in Cresco. That they asked him what it was put in at there, and he told them $5,000. They said they would put it in, and said something about letting the board of supervisors settle it. “Q. You objected to the assessment as they had it at that time? A. I told them I had been assessed in Cresco, and I supposed that was objection enough. I didn't get up and kick any about it, but told them I didn't want to pay taxes in two places.” McNally, for defendants, testified: “That Burns came before the equalization board. That the board...