Marshall County v. Knoll
| Decision Date | 01 February 1897 |
| Citation | 69 N.W. 1146,102 Iowa 573 |
| Parties | MARSHALL COUNTY, Appellant, v. JOHN KNOLL, et al |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--HON. B. P. BIRDSALL, Judge.
ACTION at law on a bond to recover the amount of a tax levied on account of the sale of intoxicating liquors. Demurrers to the petition were sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendants for costs. The plaintiff appeals.
Reversed.
T Brown for appellant.
Anthony C. Daly and Theo. F. Bradford for appellee Knoll.
J. L Carney for appellee Parsons.
The petition filed by the plaintiff names N. J. Akers, John F Knoll, and O. J. Parsons as defendants, and states that they executed to the state of Iowa and to Marshall county, of the state of Iowa their penal bond, in the sum of three thousand dollars; that it was given under the provisions of chapter 62 of the Acts of the Twenty-fifth General Assembly, entitled "An act to tax the traffic in intoxicating liquors and to regulate and control the same;" that by virtue of that act the defendant Akers obtained a license and opened a saloon in a building situate on a lot in Marshalltown, which is described; that in June, 1894, the proper assessors assessed Akers for taxation, and returned the assessment to the county auditor; that on the second day of July, 1894, the board of supervisors of Marshall county duly levied a tax of three hundred dollars for the time commencing on the twenty-eighth day of May and ending the first day of October, 1894, which stands against Akers, and which all the defendants are owing, under the bond, together with twenty per cent. penalty and interest, and accruing penalties and costs. The petition further alleges that the tax cannot be enforced on the real estate in which the saloon was kept by Akers, for the reason that it was mortgaged for its full value before the act referred to was passed, and the mortgagee had no knowledge that sales of liquor were made on the mortgaged premises, and that the defendants have failed to comply with the conditions of the bond in failing to pay the tax specified. Judgment for the sum of five hundred dollars is demanded. Knoll and Parsons filed separate demurrers to the petition.
I. Akers was not served with notice of the action, and did not appear in it, nor was the notice of appeal served upon him. Knoll and Parsons have filed a motion to dismiss the appeal on the ground that this court has no jurisdiction of the cause, for the reason that notice of appeal was not served upon Akers. He was primarily liable on the bond, and his liability was not affected nor his rights prejudiced by the proceedings against his sureties. Section 2550 of the Code provides that, "where two or more persons are bound by contract, * * * whether jointly or severally, or severally only, and including the parties to negotiable paper, common orders, or checks, and sureties on the same, or separate instruments, or by any liability growing out of the same, the action thereon may, at the plaintiff's option, be brought against any or all of them." The next section provides that "the court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights." Under these provisions an action may be brought against a surety alone, and, when he is joined with his principal, judgment may be rendered against him before it is against his principal. Okey v. Sigler, 82 Iowa 94, 47 N.W. 911. The fact that Akers was the principal on the bond in suit, and that he was named as a defendant, did not make him one in fact, nor prevent the prosecution of the case against the sureties who were named as co-defendants. Since Akers was not an actual nor a necessary party to the proceedings in the district court, it was not necessary to serve notice of appeal upon him in order to give this court jurisdiction of the case. It was held in Fisher v. Chaffee, 96 Iowa 15, 64 N.W. 662, that one of two sureties against whom a judgment had been rendered could not appeal from the judgment without serving his co-surety with the notice of appeal; but the reason for the holding was that the judgment appealed from could not be reversed or modified without affecting the rights of the co-surety. In that connection it was said of the principal, against whom judgment was also rendered, that he would not be affected by the result of the appeal because he was primarily liable in any event. We conclude that an appeal has been duly taken in this case, and the motion to dismiss is overruled.
II. The condition of the bond in suit is that, "if said N. J Akers shall faithfully observe all the provisions of the Act of the Twenty-fifth General Assembly of Iowa entitled 'An act to tax the traffic in intoxicating liquors and to regulate and control the same,' and shall pay any and all damages that shall result from the sale of intoxicating liquors upon the premises occupied by said N. J. Akers, then this bond to be void; otherwise to be and remain in full force and effect." This complied substantially with the second sub-division of section 17 of [102 Iowa 577] the act referred to, which required the bond to be "conditioned upon the faithful observance of all the provisions of this act, and for the payment of any and all damages that may result from the sale of intoxicating liquors upon the premises occupied by the obligor." It is contended by the appellees that the bond required by the statute is not designed to secure the payment of the tax, and that its collection should be enforced, if necessary, by a sale of the real and personal property used by Akers in the business in which the bond was given. It is the general rule that a tax is not a debt, within the common meaning of that term so that the ordinary remedies for the collection of debts may be applied to it, and that, where a special remedy for the collection of a tax is provided by statute, and no other is given or can be regarded as permitted by it, the special remedy is exclusive. Cooley, Tax'n, 15, 435; 25 Am. & Eng. Enc. Law, 312. But that rule does not apply in this state, where...
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