First Nat. Bank of Watertown v. Eddy

• Decision Date: 19 April 1924
• Docket Number: No. 5370.,5370.
• Citation: 47 S.D. 297,198 N.W. 554
• Parties: FIRST NAT. BANK OF WATERTOWN v. EDDY, County Treasurer.
• Court: South Dakota Supreme Court

47 S.D. 297

198 N.W. 554

FIRST NAT. BANK OF WATERTOWN

v.EDDY, County Treasurer.

No. 5370.

Supreme Court of South Dakota.

April 19, 1924.

On petition for rehearing. Denied.

For former opinion, see 197 N. W. 290.

GATES, J.

A petition for rehearing has been filed, which does not challenge the correctness of our decision upon the merits. It challenges only the correctness of our ruling that the demurrer to the complaint should have been based upon subdivision 2, instead of subdivision 6, of section 2348, Rev. Code 1919, in order to question respondent's right to maintain this action.

[1] Upon consideration of the petition for rehearing we are convinced that we erred in holding that the right of respondent to bring this action could not be questioned by a demurrer upon the sixth ground of said section, viz. “that the complaint does not state facts sufficient to constitute a cause of action.” We are convinced that the second subdivision of that section, viz. “that the plaintiff has not legal capacity to sue,” relates to cases where there is some legal disability such as infancy, lunacy, or want of title in the plaintiff to the character in which he sues.

[2] We are nevertheless of the opinion that the demurrer to the complaint was rightly overruled, and that respondent had the right to maintain this action. As we pointed out in the former opinion, the case of N. W. Loan & Banking Co. v. Muggli, 7 S. D. 527, 64 N. W. 1122, and 8 S. D. 160, 65 N. W. 442, upon which appellant relies, is to be distinguished from the one before us. Here the tax was assessed to the bank, instead of to the stockholders, and was paid by the bank, and the law is not now the same as it then was. Section 6826, Rev. Code 1919, a section that was enacted in the first instance in 1915, many years after the decision in N. W. Loan & Banking Co. v. Muggli, supra, expressly recognizes the right of this respondent to bring this action. That section says:

“Any person against whom any tax is levied *** who pays the same under protest to the treasurer *** may *** commence an action against such treasurer for the recovery thereof.”

Under that portion of the section respondent clearly had the right to bring this action. The tax had been levied against respondent, and it had paid the tax under protest.

But there is a further clause under which such right might be justified. Where we have first used asterisks in said section it says: “Or who may be required to pay the same.” By the provisions of section 6698, Rev. Code...