Hoover v. Engles
| Decision Date | 22 January 1902 |
| Docket Number | 10,906 |
| Citation | 88 N.W. 869,63 Neb. 688 |
| Parties | HARRIET F. HOOVER, ADMINISTRATRIX, v. ALBERT M. ENGLES, TREASURER OF NEMAHA COUNTY |
| Court | Nebraska Supreme Court |
ERROR from the district court for Nemaha county. Tried below before STULL, J. Affirmed.
AFFIRMED.
Broady & Pettis, for plaintiff in error.
Edgar Ferneau and E. B. Quackenbush, contra.
Argued orally by Broady, for plaintiff in error; by Ferneau, contra.
KIRKPATRICK C. HASTINGS and DAY, CC. concur.
This is an action brought by A. M. Engles, county treasurer of Nemaha county, by an order of the board of county commissioners of said county, against William H. Hoover on the 9th day of July, 1897, to recover the sum of $ 121.98 in personal taxes for the year 1884, assessed by the county authorities of Nemaha county against Hoover. An answer was filed admitting that plaintiff was the county treasurer, and denying the other allegations of the petition; and in addition, pleading that Hoover had resided in Nemaha county for forty-two years prior to 1891; that he had been one of the county officers for many years; was well known all over the county, and that during each and every year from and after the assessment of the taxes sought to be recovered he had a large amount of personal property in the county, which could have been seized for the payment of such taxes; and that the right of the county to maintain the action was barred by the statute of limitations. To this answer a reply was filed, consisting of a general denial. During the pendency of the case, and before it was reached for trial, the defendant, William H. Hoover departed this life, and by agreement the case was revived against his widow, Harriet F. Hoover, administratrix of his estate. A jury was waived, and trial had to the court, resulting in favor of the county treasurer. The administratrix brings error.
It is contended that the judgment of the trial court is wrong--First, because, taxes not being debts in the ordinary acceptation of the term, an action at law for their recovery can not be maintained in the absence of an express statute to that effect; that the act under which this action is sought to be prosecuted was passed in 1887, and, as it had no retroactive effect, it could not be invoked for the collection of taxes assessed in 1884. Second, that the statute of limitations had run against any right of action which the county or county treasurer may have had.
An examination of the statutes discloses that the first point made by plaintiff in error can not be sustained. By an act of the legislature approved March 1, 1879, taking effect September 1 of that year (Session Laws, 1879, p. 311, sec. 89), it was provided that, in case no personal property of the delinquent could be found, it should be the duty of the county treasurer, when directed so to do by the order of the board of county commissioners, to commence a civil action in the district court of said county in the same manner in which other civil actions are commenced, and prosecute the same to judgment and collection by execution, etc. While this law has been several times amended, it has always authorized the prosecution of a civil action by the county treasurer on order of the county board. And by section 89, article 1, chapter 77, Compiled Statutes, 1901, an action such as in the case at bar is expressly authorized. It follows that the first objection of plaintiff in error can not be sustained.
In support of the second contention,...
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