Minneapolis Dredging Co. v. Reikat

• Decision Date: 15 May 1942
• Docket Number: 31323.
• Citation: 3 N.W.2d 887,141 Neb. 475
• Parties: MINNEAPOLIS DREDGING CO. et al. v. REIKAT et al.
• Court: Nebraska Supreme Court

3 N.W.2d 887

141 Neb. 475

MINNEAPOLIS DREDGING CO. et al. v. REIKAT et al.

No. 31323.

Supreme Court of Nebraska

May 15, 1942

Syllabus by the Court.

1. Under the Nebraska revenue law, a county assessor has power to add to the assessment rolls any property omitted therefrom for the current year. Comp.St.1929, sec. 77-1006.

2. Where the jurisdiction of the county board of equalization is invoked by complainants to cancel or reduce an assessment of personal property, the board's denial of relief after a hearing is a final determination of those issues unless the action of the board is set aside on appeal.

3. Appeal from the action of the county board of equalization in refusing to cancel or reduce an assessment of personal property is an adequate remedy at law and failure to appeal precludes injunction to prevent enforcement of the assessment.

4. In Nebraska, complainants who invoke the jurisdiction of the county board of equalization to cancel or reduce an assessment of personal property do not lose their statutory right to appeal from an adverse ruling on the complaint by failure of the county clerk to make a record of the decision the final order being provable by parole evidence.

Shuman & Overcash, of North Platte, for appellants.

Zelma Derry and M. M. Maupin, both of Ogallala, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

ROSE Justice.

Minneapolis Dredging Company and Martin Wunderlich Company, plaintiffs applied to the district court by petition in equity for an injunction to prevent Addie S. Reikat, treasurer, and Fred G Taylor, sheriff, of Keith county, defendants, from enforcing against plaintiffs an assessment of taxes for the year 1939 on personal property in Keith county.

It is alleged in the petition that plaintiffs are contractors engaged in constructing a dam for the Central Nebraska Public Power and Irrigation District in Keith county and have therein personal property which they are using in the work of construction that John Leonard, about July 1, 1939, purported to make a personal tax schedule against plaintiffs and included therein a dredge at the value of $189,000; that the schedule was filed in the county assessor's office and by virtue thereof an unlawful and void assessment of $2,228.31 was made against plaintiffs; that the dredge was not the property of plaintiffs April 1, 1939, nor at any time during that year, but was owned by the district named; that, notwithstanding the invalidity of the tax, defendants threaten to enforce payment thereof by means of a distress warrant.

By answer to the petition defendants admit they threaten to enforce by distress warrant the taxes of which plaintiffs complain, and plead that on April 1, 1939, the personal property described in the petition was then owned by plaintiffs, was then in their possession and under their control, subject to taxation in Keith county; that plaintiffs refused to schedule their dredge property for taxation and that John Leonard, county assessor, made and returned an assessment thereon, notified plaintiffs thereof and delivered to them a copy of the assessment schedule; that the dredge property was legally assessed and that taxes so levied are due and owing by plaintiffs to Keith county; that plaintiffs appeared before the county board of equalization, objected to the assessment and requested cancelation thereof; that the board sustained the assessment as made; that plaintiffs did not appeal from the action of the board and consequently are bound by it and are not entitled to an injunction.

Upon a trial of the cause the district court found the issues in favor of defendants, refused to grant an injunction and dismissed the action. Plaintiffs appealed.

Plaintiffs contend that the assessment of the dredge property for the year 1939 was void for the reason that it was not assessed by the precinct assessor nor by any other officer having authority to make an assessment. This position is untenable. Plaintiffs alleged in their petition for an injunction that they are engaged in constructing a dam and have in Keith county personal property which they are using in the work of construction. The record contains evidence that a schedule listing some of their personal property did not include dredge equipment; that the county...