Millett v. Early

• Decision Date: 26 August 1884
• Citation: Millett v. Early, 16 Neb. 266, 20 N.W. 352 (Neb. 1884)
• Parties: MILLETT v. EARLY.
• Court: Nebraska Supreme Court

16 Neb. 266

20 N.W. 352

MILLETT

v.EARLY.

Supreme Court of Nebraska.

Filed August 26, 1884.

Error from Platte county.

Byron Millett, for plaintiff.

M. Whitmoyer, for defendant.

MAXWELL, J.

In April, 1883, the defendant, who was treasurer of Platte county, filed an account in the county court of that county against the estate of Nelson Millett, deceased, as follows: “April 24, 1883. Estate of Nelson Millett, deceased, in account with Platte county, by J. W. Early, Treasurer, Dr. Personal taxes for the year 1875, $34.40; 1876, $36.60; 1877, $63.32; 1878, $24; 1879, $20.62; 1880, $13.72,--$192.72.” Which was duly verified and afterwards allowed against the estate. One of the heirs then applied to the district court. A petition was filed by the treasurer in that court setting forth the facts in relation to the taxes in question. To this petition the plaintiff herein demurred. The court overruled the demurrer and affirmed the order of the county court, to which the plaintiff excepted, and now assigns the same for error.

Section 49 of the revenue law of 1869 provides that “if any person neglect so to attend and pay his personalty taxes until after the first day of May next succeeding the levy of the tax, the treasurer is directed to levy and collect the same, together with costs of collection, by distress and sale of personal property belonging to such person, in the manner provided by law for the levy and sale of property upon execution.” In 1877 the act was amended by extending the time of payment to November 1st, next after the taxes became delinquent. It will be seen that the statute gave the treasurer power to levy upon and sell personal property for the taxes upon personalty. The right to levy upon the property of the deceased is suspended by the proceedings to administer upon the estate, and the statute provides that all claims against such estate shall be filed with the probate judge. A tax upon personalty, under the law of 1869, did not create a lien upon personal property, but was to be satisfied out of any property of the debtor that could be levied upon; in other words, it was a mere personal obligation, against which it is probable the statute of limitations would run. In Nebraska City v. Gas Co. 9 Neb. 339, S. C. 2 N. W. REP. 870, it was held that as taxes did not arise upon contract, express or implied, nor had the amount thereof been determined by the judgment of a court, that therefore they could not be set off under the...