Dowling v. Webster Cnty.

• Decision Date: 06 March 1912
• Citation: 154 Iowa 603,134 N.W. 870
• Parties: DOWLING v. WEBSTER COUNTY ET AL.
• Court: Iowa Supreme Court

154 Iowa 603

134 N.W. 870

DOWLING

v.WEBSTER COUNTY ET AL.

Supreme Court of Iowa.

March 6, 1912.

Appeal from District Court, Webster County; R. M. Wright, Judge.

The treasurer and auditor notified James Dowling of being apprised that he was possessed of $25,000 in moneys and credits omitted from taxation in 1904 and the three years following, and of the time and place fixed for hearing, and on December 31, 1908, assessed moneys and credits at the actual value of $15,250 in each for the first two years mentioned, and $2,000 less for each of the succeeding years, and demanded of him taxes and accrued interest, amounting to $1,028.84. From such assessment Dowling appealed to the district court, which, on hearing, adjudged that the assessment be canceled. The county treasurer and county auditor appeal. Affirmed.Mitchell & Fitzpatrick and McCoy & McCoy, for appellants.

Healy & Healy and Seth Thomas, for appellee.

LADD, J.

[1] The evidence adduced on the hearing before the district court was conclusive that the treasurer and auditor had erred in assessing any moneys and credits to James Dowling as having been withheld from taxation during the years mentioned. The board of review had decided in 1905 that the identical securities did not belong to him, and that alone was sufficient to obviate any assessment thereon by the auditor or treasurer for that year. Tally v. Brown, 146 Iowa, 360, 125 N. W. 248, 140 Am. St. Rep. 282. He had transferred the notes and mortgages previously held by him to his daughters by way of advancements prior to the period in question, and renewals had been taken in their names. Notwithstanding appellants' suspicions to the contrary, these gifts appear to have been complete and in good faith.

2. Upon receiving appellants' abstract, appellee discovered that neither it nor the transcript of the evidence disclosed that any objection to the assessment had ever been made to the auditor and treasurer. Thereupon he filed a motion in the district court, praying that the record of the trial be corrected, so as to show that an agreement had been made at the beginning of the trial that objection had been interposed before the county treasurer and auditor at or prior to the time fixed by them for hearing, and so as to include a professional statement, made by the attorney for the appellee, to the effect that, in behalf of the appellee, he had made objections to the proposed action of the county treasurer and county auditor to them prior to the assessment, to the effect that appellee had no moneys or credits as claimed. This motion was supported by affidavits and a certificate of the trial judge. Counter affidavits were filed, and, upon hearing, the court entered an order amending the record, so as to insert in the transcript of the official reporter's shorthand notes of the case, just preceding the testimony taken in the case: “The Court: Mr. Healy, it appears from the transcript sent up by the county treasurer that no objections were made to the assessment by Mr. Dowling, and this matter is jurisdictional; what do you say, Mr. Healy? Mr. Healy: The objections, your honor, were filed, and if the transcript does not show them I ask for time to make search for them. The Court: We cannot delay the trial to make this search. Mr. Healy: Well, I will be sworn. Mr. Mitchell: You need not be sworn; we will take your statement. Mr. Healy: I made objections, both orally and in writing, to both the treasurer and auditor that Mr. Dowling had no...