Hutchinson v. Board of Equalization of City of Oskaloosa

• Decision Date: 22 April 1885
• Citation: 23 N.W. 249,66 Iowa 35
• Parties: HUTCHINSON v. THE BOARD OF EQUALIZATION OF THE CITY OF OSKALOOSA
• Court: Iowa Supreme Court

23 N.W. 249

66 Iowa 35

HUTCHINSON v. THE BOARD OF EQUALIZATION OF THE CITY OF OSKALOOSA

Supreme Court of Iowa, Davenport

April 22, 1885

Appeal from Mahaska Circuit Court.

THE plaintiff appealed to the circuit court from the orders rulings and assessments made by the defendant in relation to the assessment of the plaintiff, as agent, for the purpose of taxation. He also sued out a writ of certiorari from the same court for the purpose of correcting the said assessment. Both cases were heard on the same evidence, and the circuit court affirmed the assessment, and the plaintiff appeals.

AFFIRMED.

John O Malcolm and John F. Lacey, for appellant.

Jas. A Rice and L. C. Blanchard, for appellee.

OPINION

ROTHROCK, J.

I.

Counsel for the appellant insist that the defendant increased the assessment of the plaintiff's property liable to taxation, and that such act is void for two reasons. The first is that the board failed to make any record of its proceedings in this respect, and that the statute (Code, § 829) requires such a record; and, second, that no notice was served on the plaintiff, or posted, as required by chapter 109 of the Acts of the Eighteenth General Assembly. McClain's Code, 302. On the other hand, counsel for the appellee insist that the only assessment of the plaintiff's property was made by the assessor, and that the same was not increased by the board, nor did the plaintiff ask the court to correct the assessment thus made. The defendant, therefore, insists that there was no act of defendant from which the plaintiff could appeal. No motion, however, was made to dismiss the appeal, and the case was tried on its merits in the circuit court. We therefore are not disposed to sustain the technical objection made by the appellee, but determine the case on the merits, although some of the members of the court are of the opinion that, in fact, the defendant did not increase the assessment made by the assessor.

The plaintiff was not served with notice, nor was one posted, as required by law; but the plaintiff was informed by his wife that the board desired him to appear before it, and he did so, and at the request of the board made a written statement in relation to the question whether certain moneys and credits should be assessed to him for the purpose of taxation. He had full knowledge of the object of the board, and at his request counsel appeared for him and made arguments for the purpose of showing that said moneys and credits were not assessable. We think, under these circumstances, that the plaintiff cannot be permitted to say that the assessment is void because he had no notice of the proposed action of the board in the precise form required by law. The only purpose of the notice was accomplished when the appellant voluntarily appeared in person and by counsel. It is true, there is no record showing that the board increased the assessment, or directed it to be made. But, either on his own motion the assessor made the assessment in question, or did so in accordance with the verbal direction of the board. This is the assessment that was in controversy before the board, and from which the appeal was taken, and which the circuit court affirmed. Such an assessment is not absolutely void because the board failed to cause their action to be entered on record. The provision in relation the record is directory, and the assessment is in writing, and sufficient for all the purposes of this case. Prouty v. Tallman, 65 Iowa 354, 21 N.W. 675.

II. The plaintiff came to Iowa from England in 1875, and became a resident of Mahaska county. Afterwards, and for a year or more prior to the assessment in question, the plaintiff changed his mode of doing business, and made the loans of said money in his own name, and he collected the interest and principal when they became due, and reloaned the same. The notes and mortgages were in his possession, and he had the exclusive management and control thereof, but he was accountable for his doings to the parties in England. A portion of the money, at the time of the assessment, was loaned in Kansas in the plaintiff's name. Such loans were made by his direction, and the loans and the evidences thereof were controlled by him. It does not appear that there was any understanding between the plaintiff and the parties in England as to how long the arrangement above stated was to continue. For aught that appears, it could well continue for an indefinite time. The assessment was made for the year 1882, and is in these words, as appears from the assessor's books: "Hutchinson, Charles, agent for other parties, names not given, moneys and credits, $ 34,699; total, $ 34,699."

It is provided by statute that "any person acting as the agent of another, and having in his possession, or...