Filer v. Maricopa County, 5025

• Decision Date: 04 October 1948
• Docket Number: 5025
• Citation: 68 Ariz. 11,198 P.2d 131
• Parties: FILER v. MARICOPA COUNTY et al
• Court: Arizona Supreme Court

198 P.2d 131

68 Ariz. 11

FILER v. MARICOPA COUNTY et al

No. 5025

Supreme Court of Arizona

October 4, 1948

Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.

Affirmed.

E. S Clark, of Phoenix, for appellant.

Darrell R. Parker, of Phoenix, for appellees.

Udall Justice. LaPrade, J., concurs. Stanford (specially concurring).

OPINION

Udall Justice.

R. D. Filer, appellant (plaintiff), brought an action against the County of Maricopa, the County Treasurer, and one William P. Lutfy, appellees (defendants), seeking to quiet his title to:

Lots Five (5) and Six (6), in Block One (1), of South Capitol Addition to the City of Phoenix, Maricopa County, Arizona.

By their answer the county and its treasurer disclaimed any interest in or to said property. Appellee Lutfy, however, in addition to a motion to dismiss (which was denied) filed an answer alleging that by virtue of two tax deeds he was the owner in fee simple of said property and by cross-complaint asked that his title be quieted thereto. After a trial to the court, sitting without a jury, judgment was entered quieting appellee Lutfy's title on his cross-complaint, and denying appellant any relief whatsoever on his complaint. A motion for new trial was denied, and the matter comes now before us for review on appeal from the judgment and the order denying appellant's motion for new trial and refusing to permit the filing of an amended answer to the appellee's cross-complaint.

A tax certificate covering the lots in question was sold to the state of Arizona under a tax sale for the amount of $ 6.58 which included penalty, interest and fees, the sale resulting from the failure of appellant to pay the real property taxes on the lots for the year 1935. And it is through this sale, the subsequent assignment to him of the certificate of purchase by the state of Arizona and the tax deeds subsequently issued by the county treasurer, that appellee Lutfy deraigns his title.

There is no evidence in the record, by tax receipt or otherwise, that the taxes for the year 1935 were actually paid to the treasurer. It is appellant's novel contention that as the treasurer had erroneously collected from him for each of the years 1930 and 1932 a $ 2.50 school tax under the provisions of Sec. 3185, R.C.A.1928, subsequently repealed by Ch. 100, Laws of 1935 (he being a non-resident of the state during those years and thus exempt from the payment of this poll tax), there then existed a sufficient credit in his favor with the county from which the 1935 taxes on the realty should have been paid. (The exact tax for the year 1935 is not shown, but the tax receipts in evidence do show that for the years 1926 to 1945 inclusive, the realty tax on these two unimproved lots ranged from $ 1.42 to $ 3.36 per year.)

We know of no authority or statutory rule, and none has been cited to us, by the provisions of which an overpayment of taxes in one year shall constitute a credit upon any taxes which may accrue in some future year, nor is there any duty imposed upon the treasurer to retain such an overpayment in a suspense account and apply the amount thereof to future taxes. Taxes are collected upon an annual basis, and for the moneys thus collected receipts are issued and a monthly accounting made to the Board of Supervisors. These funds are thereafter periodically apportioned. The county treasurer has no authority to refund taxes once he has issued receipts for the same except under lawful order of the proper authority. It is readily apparent, then, that as the 1935 taxes on appellant's realty were not paid, either directly or indirectly by virtue of prior alleged illegal exactions, appellant is not in a position to invoke the proposition of law upon which he relies, to wit: "when taxes have in fact been paid prior to a tax sale, the tax proceedings are null and a deed issued thereunder is void and confers no title".

The other two assignments of error have to do with the court's refusal to allow appellant to file a verified amended answer to the appellee's cross-complaint, and its denial of his amended motion for a new trial. The precise contention as to the first mentioned ruling is that not only was this refusal contrary to a practice of many years standing, but that such ruling violated certain court rules and thereby deprived the appellant of the right to prove material facts.

The trial in this cause was had on January 15, 1947. No findings of fact were incorporated in the judgment, which was entered on February 21, 1947, doubtless for the reason that none were requested. Sec. 21-1027, A.C.A.1939. The motion for new trial was not denied until March 31, 1947, and at the same time the court also entered the order refusing permission to file the tendered amended answer. Unless the trial court was of the opinion that a new trial should be granted, there was no point in permitting the filing of this proposed amended answer to the appellee's cross-complaint, for it is evident that the pleading was not being offered to conform to the proof adduced at the trial nor was it based upon any newly discovered evidence. In reality the tendered pleading was in some respects a reiteration of the original answer, plus the injection of some entirely new issues upon which no evidence had been offered, as for example the insufficiency of the description of the lots involved in the tax sale proceedings. Lacking such evidentiary support, these new matters cannot be accepted as established facts in determining this appeal. Under this state of the record we are unable to perceive in what way the court's refusal to permit the filing of appellant's amended pleading violated the rules of court relied upon, which, in so far as material, read:

"Findings by the court -- Amendment. -- Upon motion of a party made not later than ten (10) days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion...