Davis v. Otoe County

• Decision Date: 23 September 1898
• Docket Number: 9428
• Citation: 76 N.W. 465,55 Neb. 677
• Parties: MICHAEL B. DAVIS v. OTOE COUNTY
• Court: Nebraska Supreme Court

76 N.W. 465

55 Neb. 677

MICHAEL B. DAVIS v. OTOE COUNTY

No. 9428

Supreme Court of Nebraska

September 23, 1898

ERROR from the district court of Otoe county. Tried below before RAMSEY, J. Affirmed.

AFFIRMED.

M. L Hayward and C. W. Seymour, for plaintiff in error.

John V Morgan and John C. Watson, contra.

OPINION

HARRISON, C. J.

On November 23, 1893, the plaintiff purchased of James Reed a stock of drugs, medicines, and oils; also the fixtures then in a store building in Nebraska City, and assumed possession management, and the sale of the stock in the regular course of a retail trade or business. On the next day the county treasurer of Otoe county, wherein the property was and had been of location, issued distress warrants to enforce the collection of certain delinquent taxes which purported to have been assessed against the former owner of the drug business and stock, and they were by the sheriff of the county, to whom they were delivered for service, levied on the said stock of goods and property in the store. On December 5 the plaintiff paid the taxes under protest, and during the succeeding month filed a claim with the county commissioners for the repayment to him of the amount he had so paid. The claim was rejected or disallowed by the board, and an appeal of the matter was perfected for the plaintiff to the district court, where, as the result of a trial, judgment was rendered against him, and the matter is presented to this court by error proceeding in his behalf.

It is argued for plaintiff that he had in his petition pleaded that certain acts prescribed by law relative to the assessment and collection of the taxes in question had not been performed, or not properly done, hence the taxes were invalid and uncollectible; that no evidence had been introduced for defendant to show to the contrary, and without such evidence there could not be a judgment for defendant, or, if rendered, it was erroneous. To make out a claim for the repayment of the taxes on either of the grounds to which this branch of the argument for plaintiff has reference, it was, as to each, a necessary averment on the part of plaintiff that the act had not been performed, or the essential prerequisite to a valid tax did not exist, and to such assertions the answer contained denials. The burden of proof was on the plaintiff as to each subject-matter pleaded through or by reason of which he asserted the illegality or invalidity of the taxes. (Miller v. Hurford, 13 Neb. 13, 12 N.W. 832; Towle v. Holt, 14 Neb. 221, 15 N.W. 203; Adams v. Osgood, 42 Neb. 450, 60 N.W. 869.)

It is urged that there was error committed in the admission of certain testimony. There is no specific assignment relative to this asserted error in either the motion for a new trial or the petition in error; hence it cannot be reviewed. (Grand Island & W. C. R. Co. v. Swinbank, 51 Neb. 521, 71 N.W. 48; Woodbridge v. DeWitt, 51 Neb. 98, 70 N.W. 506.)

The further arguments of plaintiff relate specifically to matters of each of which it is contended it rendered the taxes invalid, or of one that the taxes for the major number of the years were barred by limitation, and unenforceable. The recovery of these taxes was sought by plaintiff under and by virtue of a portion of section 144, chapter 77, article 1, Complied Statutes, which is as follows: "No injunction shall be granted by any court or judge in this state to restrain the collection of any tax, or any part thereof, hereafter levied, nor to restrain the sale of any property for the non-payment of any such tax, except such tax, or the part thereof enjoined, be levied or assessed for an illegal or unauthorized purpose; nor shall any person be permitted to recover by replevin, or other process, any property taken or distrained by the county treasurer, or any tax collector, for the non-payment of any tax, except such tax be...