Des Moines Gas Co. v. Saverude

• Decision Date: 14 December 1920
• Docket Number: 33741
• Citation: Des Moines Gas Co. v. Saverude, 190 Iowa 165, 180 N.W. 193 (Iowa 1920)
• Parties: DES MOINES GAS COMPANY, Appellee, v. CHAS. E. SAVERUDE et al., Appellants
• Court: Iowa Supreme Court

180 N.W. 193

190 Iowa 165

DES MOINES GAS COMPANY, Appellee, v. CHAS. E. SAVERUDE et al., Appellants

No. 33741

Supreme Court of Iowa, Des Moines

December 14, 1920

Appeal from Polk District Court.--THOS. J. GUTHRIE, Judge.

PLAINTIFF brought action asking for a writ of mandamus against defendants as the board of supervisors, to require the board to issue directions to the treasurer of Polk County to refund to plaintiff the sum of $ 6,457.57, and for judgment for costs. The relief asked was granted by the district court and the defendants appeal.

Affirmed.

George F. Henry, for appellants.

Carr Carr & Cox, for appellee.

PRESTON J. LADD, SALINGER, and STEVENS, JJ., concur.

OPINION

PRESTON, J.

Plaintiff 's plant is situated on 15 lots, and was assessed as town lots. The property was assessed by the assessor, as of January 1, 1917, at $ 3,350,000, and such valuation was duly entered upon the assessment roll. Plaintiff made objection, before the board of review, and asked said board to reduce the assessment to $ 2,500,000, which was refused; but the board of review reduced the assessment to $ 2,850,000. Thereafter, and on May 8, 1917, plaintiff appealed to the district court. It appears that the case was not reached for trial for a year or more. Before the determination of the appeal, while it was still pending, and in August, 1917, the county auditor reduced this assessment 9 per cent, in accordance with the action of the state board of equalization, reducing town lot assessments. This reduction made the amount of the assessed valuation of the property $ 2,593,500. Thereafter, the appeal to the district court came on for trial; and, under a written stipulation, dated September 23, 1918, the assessed valuation was fixed at $ 2,500,000. This was on September 24, 1918. The decree entered under the stipulation reads, in part, that the court "finds, under and in accordance with the stipulation of the parties on file herein, that the value of the property of the Des Moines Gas Company, specifically described in the notice of appeal, is hereby fixed at the sum of $ 2,500,000;" and that the assessment against the company should be reduced from the sum fixed by the assessor and by the board of review, to the sum of $ 2,500,000. Appellee's claim is that the assessment, as finally fixed on the appeal, is the actual assessed valuation of the property as of January 1, 1917, and that the 9 per cent reduction should have been figured on that basis, rather than upon the basis figured by the county auditor. It asks a refund of the difference. The stipulation upon which the valuation was fixed on the appeal is signed by Carr, Carr & Evans, attorneys for plaintiff, and H. W. Byers and others, attorneys for the defendant. After describing the property, and reciting the proceedings we have before set out, it stipulates that:

"For the purposes of this case only, it is agreed that the value of said property was the sum of $ 2,500,000, and that the assessment of said property should be reduced from the amount as fixed by the board of review, to the sum of $ 2,500,000, and that an order be entered by this court reducing said assessment to said sum of $ 2,500,000.

"It is expressly understood and agreed that neither party shall be estopped, affected, or prejudiced by this agreement or by any finding, judgment, or decree of this court made in accordance herewith, in any other proceeding in this or any other court, or in any other matter or thing whatsoever, and that it shall have no effect except to determine the issues herein, and fix the amount at which said property is assessed.

"It is further stipulated and agreed that no penalties heretofore incurred for failure to pay the tax upon said property shall be assessed or collected, but this agreement shall not apply to penalties, if any, hereafter incurred."

Such was the stipulation as signed. As originally prepared, it contained the following:

"And the valuation hereby fixed shall be subject to the action of the state board of equalization, in equalizing the taxes between the several counties."

Before it was signed, these words were struck out, by drawing a pen through them. Appellant contends that there was an agreement between the attorneys that the final valuation was not to be subject to the action of the state board of equalization, and that the fact that the words above referred to were struck out, and the stipulation signed in the form in which it was signed, together with the testimony of Mr. Byers, establishes such an agreement. Judge Carr, who had charge of the matter for plaintiff, is dead, and the recollection of Byers is not clear as to the transaction of striking out the words referred to, and signing the stipulation. He thinks that the erasure was made to meet his understanding of the arrangement with Judge Carr. It is quite clear, however, from the conduct of Judge Carr, following the signing of the stipulation, that such was not Judge Carr's understanding of it. One of the circumstances which so shows, is that he at once presented the matter to the auditor for a reduction of 9 per cent on the $ 2,500,000. All the negotiations between Mr. Byers and Judge Carr were prior to the signing of the stipulation. Appellee contends that all such were merged in the writing. Mr. Byers testifies, in part:

"Q. When did this conversation occur, General, in which you claim that Judge Carr agreed that the amount found was not to be affected by the action of the state board of equalization? A. I haven't said that Judge Carr agreed to anything. The conversation I had with the judge was before the stipulation was signed. * * * Q. So what you are testifying to, as I understand you, is some...