Lewis v. Eshleman

• Decision Date: 21 March 1882
• Citation: 11 N.W. 617,57 Iowa 633
• Parties: LEWIS ET AL v. ESHLEMAN ET AL
• Court: Iowa Supreme Court

11 N.W. 617

57 Iowa 633

LEWIS ET AL v. ESHLEMAN ET AL

Supreme Court of Iowa, Des Moines

March 21, 1882

Appeal from Cherokee Circuit Court.

THE plaintiffs presented their petition to the Hon. J. R. Znver for an injunction, and thereupon a temporary injunction issued as prayed. Afterward the plaintiffs filed an amended and substituted petition, alleging in substance that plaintiffs own in severalty separate and distinct parcels of land, situated within the corporate limits of the incorporated town of Cherokee; that all of said lands are held and used exclusively for agricultural purposes; that they are remote from the town proper; have no additions or town improvements near them; are not benefited in any manner by the current expenditure of said town; and are not held by the owners for the purpose of laying them off into town lots and putting them in market as town property; that ever since said town was incorporated it has levied on said lands a tax for corporation purposes, and collected the same from the plaintiffs; that the plaintiff Lewis has refused to pay the tax levied on his lands for 1879, and the defendant Eli Eshleman has advertised the lands, and will sell them unless restrained; that the town of Cherokee has levied for the year 1880 municipal taxes on said lands, and the defendant Chick will, unless restrained, extend the same on the tax books of the county. Plaintiffs pray that Eshleman be restrained from extending on the tax books of Cherokee county any municipal tax levied on the lands described in the petition, and that upon the final hearing the levy of said taxes be declared illegal. The defendant filed a motion to dismiss the action because the petition shows there is a misjoinder of parties also to strike out of the petition all causes of action but one, and cause plaintiffs to elect which cause of action will be presented, for the reason that there is a misjonder of causes of action. Afterward the defendants filed a motion to dissolve the temporary injunction, for the reason that plaintiffs are misjoined in the action. Afterward the court made a ruling upon said motions as follows: "Plaintiffs having been given time heretofore to elect whether they would strike out all parties plaintiffs but one, they now elect to stand upon their amended and substituted petition. Defendant's motion to dismiss is sustained and case dismissed, injunction dissolved at plaintiff's costs, and thereupon ...