Kirkwood v. Ford

• Decision Date: 20 March 1899
• Citation: 34 Or. 552,56 P. 411
• Parties: KIRKWOOD v. FORD. [1]
• Court: Oregon Supreme Court

56 P. 411

34 Or. 552

KIRKWOOD v. FORD. ^[1]

Supreme Court of Oregon

March 20, 1899

Appeal from circuit court, Washington county; Thomas A. McBride Judge.

Application for mandamus by Janet Kirkwood against H.P. Ford. From an order dismissing the writ, plaintiff appeals. Affirmed.

This is a proceeding by mandamus to compel the sheriff of Washington county to remit the taxes assessed against the plaintiff upon certain mortgages, as authorized by section 2832, Hill's Ann.Laws. It appears that the plaintiff was assessed in 1895 by the assessor of said county upon real, but not upon personal, property, which assessment was returned in due time to the board of equalization. She was thereupon cited to appear before the board, and show cause why she should not be assessed upon certain notes, and, in pursuance thereof appeared in person on September 28, 1895, and admitted under oath that she was the owner of notes aggregating $10,680 which the board caused to be assessed to her at $8,000. Subsequently, on March 21, 1896, plaintiff presented an affidavit to the sheriff, setting forth a list of all the property which she claimed to own liable to taxation, and alleging that the assessor had, by mistake or otherwise returned, as taxable property belonging to her, the said notes, valued at $8,000, when in truth and in fact she was not the owner thereof, and that the same were wrongfully assessed to her. The plaintiff's demand for a remission of the taxes thereon having been refused, she sued out a writ of mandamus to compel compliance on the part of the sheriff. The sheriff, in his return to the alternative writ, set up the facts touching the plaintiff's citation and appearance before the board of equalization, her admission under oath that she was the owner of such notes and mortgages securing the same, its consequent assessment of the property to her, and that such assessment is the one complained of. The lower court found the allegations of the return to be true, and entered judgment dismissing the writ, from which plaintiff appeals.

S.B. Huston, for appellant.

W.N. Barrett, for respondent.

WOLVERTON C.J. (after stating the facts).

The contention of plaintiff is that the directions of section 2832 are mandatory and that, when any person shows by affidavit that he or she has been wrongfully assessed upon property not belonging to such person, the sheriff has no alternative but to remit the taxes, and report his action to the county court for credit upon his account. It will be noted that the section relates to the...