Deane v. Todd

• Decision Date: 31 October 1855
• Citation: 22 Mo. 90
• Parties: DEANE, Appellant, v. TODD et al., Respondents.
• Court: Missouri Supreme Court

22 Mo. 90

DEANE, Appellant,

v.TODD et al., Respondents.

Supreme Court of Missouri.

October Term, 1855.

1. Where an assessment of a tax has been made by the assessor, and the party upon whose property the assessment has been made fails to make complaint, in respect to any error in the assessment, to the court of appeals when sitting for the correction of such errors, and the tax-books are made out and are delivered to the collector; held, that the ordinary judicial tribunals have no authority to stay the collection of the tax at the suit of the taxpayer. The law has provided a special tribunal for the correction of errors in the assessment of taxes, and to that resort must he had. (SCOTT, J., dissenting.)

Appeal from Washington Circuit Court.

Plaintiff filed his petition in the Circuit Court of Washington county, praying that Todd, the sheriff and collector of said county, might be enjoined and restrained from collecting a certain tax alleged to have been improperly assessed against the plaintiff, and also praying that the county court of said county be directed to set aside and annul the assessment of said tax. It appears from the finding of the court, that on the 1st of February, 1854, the plaintiff was a resident of Washington county; that on that day he held a note or bond on the Potosi lead company for $72,300, to fall due October 1st, 1854, it drawing interest from its date. The Potosi lead company, as a corporation, was entirely insolvent on said 1st of February, 1854 but many of the individual members of the said corporation were entirely solvent. It is alleged in the petition, and not denied in the answer, that the only security the plaintiff had for the payment of the said sum of $72,300, was a mortgage of a certain tract of land which was assessed by the assessor of said county at $4,000. It is also found by the court that the plaintiff removed from the state of Missouri in April or May, 1854, he fixing his residence thereafter in the state of New York, and leaving one John Dean, jr., as his agent. After plaintiff had left the state, the assessor called upon John Dean, jr., the agent, for a list of plaintiff's property, and he gave to the assessor a list which did not contain the above note and mortgage for $72,300; which was afterwards added by the assessor and assessed at its apparent value. It is alleged in the petition, and not denied in the answer, that the plaintiff was returned by the assessor as a non-resident, and that his property was put upon the non-resident list; that neither the petitioner nor his agent were in the state at the time the court of appeals for said county was held, nor at the time notice was given of holding said court, and that they had no notice that the note had been added to the list handed to the assessor by plaintiff's agent, until after the court of appeals had passed, and the tax-books had been handed to the collector. The plaintiff, upon learning of the said assessment, after the adjournment of the said court of appeals, applied to the county court to be relieved from the payment of the same. His application was refused, and thereupon the present suit was brought.

Frissell, for appellant.

1. The debt of $72,300 was not taxable for the reason that the Potosi lead company was insolvent. (Sess. Acts, 1849, p. 113.) 2. The reason for not applying to the court of appeals is sufficient. (R. S. 1845, p. 934, sec. 33.)

Perryman & Carter, for respondent.

1. The plaintiff has lost his remedy by permitting a term of the court of appeals, regularly advertised and held according to law, to pass, without making any complaint against the assessment. He has lost his remedy by his laches. (2 Sto. Eq. 895, 896.) 2. The plaintiff being a resident of Washington county, February 1st, 1854, the note was a proper object of taxation. (R. S. 1845, p. 931, 932, § 10, and 21; Sess. Acts, 1849, p. 112, 113.) 3. The fact that the Potosi lead company, as a corporation, was insolvent, did not make the said note an improper object of taxation. The individual corporators were solvent and liable. (R. S. 1845, p. 233, § 13.) 4. It does not matter that the property of plaintiff was put upon the non-resident list, as he was a resident of Washington county, February 1st, 1854.

LEONARD, Judge, delivered the opinion of the court.

Assuming, for the purpose of the present case, that the plaintiff ought not to have been taxed on account of the debt due him from the Potosi lead company, the assessment was not therefore void, so that the tax-book, delivered to the collector, conferred no authority upon him to collect the amount standing there against the...