Moody County v. Cable

• Decision Date: 26 April 1967
• Docket Number: No. 10366,10366
• Citation: 150 N.W.2d 193,82 S.D. 537
• Parties: MOODY COUNTY, South Dakota, a Public Corporation, Plaintiff and Appellant, v. Frank CABLE, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 193

150 N.W.2d 193

82 S.D. 537

MOODY COUNTY, South Dakota, a Public Corporation, Plaintiff and Appellant, v. Frank CABLE, Defendant and Respondent.

No. 10366.

Supreme Court of South Dakota.

April 26, 1967.

Rolland G. Jones, Flandreau, for plaintiff and appellant.

Peter J. Schmitz, of Martens, Goldsmith, May & Porter, Pierre, for defendant and respondent.

BIEGELMEIER, Judge.

This is an action by Moody County to collect personal property taxes claimed due from defendant. Defendant's answer in addition to a general denial, alleged he was a resident of Buffalo County, the cattle were on feed and not grazing cattle and were first lawfully listed and assessed in the county of defendant's residence. It was stipulated defendant had feeder cattle owned by him upon farms in Moody County on assessment dates of May 1, 1960 and 1961, which were in the care and custody of various farmers, and taxes were assessed against defendant by that county in amounts stated; that defendant had no connection with the cattle other than owning them and placing them in the care of such farmers and had not pursued any administrative remedy found in SDC 57.04 such as appearing before the local equalization board to protest the amount of the tax nor had he made application to abate or adjust the taxes as permitted by SDC 57.08. The transcript shows additional testimony was received. The trial being to the court, Findings of Fact and Conclusions of Law were entered.

The trial court found defendant was a resident of Buffalo County and on May 1, 1960 and May 1, 1961, had cattle in Moody County on which plaintiff levied and assessed taxes for such years which defendant refused to pay; that while such cattle were in Moody County, they were not connected with any farm and were not grazing cattle, but were temporarily contained in feed lots which were not owned or leased by defendant, but controlled by other persons. From such findings the court concluded the taxable situs of the cattle owned by defendant, a resident of Buffalo County, was not in Moody County for the years 1960 and 1961 and the purported assessment was voidable by reason of lack of taxable situs therein, which defense defendant had a right to raise. Judgment for defendant followed and the county appealed.

Plaintiff county argues several points in the brief under questions claimed to be presented by the assignments of error. The appeal being from the judgment without a motion for a new trial, defendant challenges the right of plaintiff to question the findings as it neither proposed nor requested any findings as permitted by SDC 33.1405 though given an opportunity for hearing by the trial court. Plaintiff counters that the last sentence of the section mentioned grants it an exception to the findings as entered. It provides any action 'of the Court in adopting, rejecting, modifying, or making proposed findings of fact or conclusions of law * * * shall be deemed excepted to'. That must be read with other applicable sections. SDC 33.1607 states an application for a new trial is not necessary to obtain appellate review of insufficiency of the evidence where the appeal is from the judgment, provided it has been submitted to the trial court as prescribed in SDC 33.0710. The latter section permits appellate review thereof if it has been 'timely presented to the trial court by motion for directed verdict, request for findings, or other apt motion, offer, objection, or exception'.

Sufficiency of the evidence cannot be reviewed without compliance with SDC 33.0710. SDC 33.1405 merely grants an exception to rulings of the court, but does require request for a finding on an issue of fact as foundation for an assignment of insufficiency of the evidence as to it. The court has uniformly so held. See Hines v. Moulton, 1935, 63 S.D. 535, 261 N.W. 666, for cases cited prior to the adoption of the 1939 rules and thereafter Doling v. Hyde County, 1945, 70 S.D. 339, 17 N.W.2d 693; In re Appeals of Bottcher, 1960, 78 S.D. 360, 102 N.W.2d 623, and Iversen v. Terriere, 78 S.D. 478, 104 N.W.2d 474. Plaintiff is therefore limited to the question of whether the findings support the conclusions of law and judgment. Hines v. Moulton, supra.

Assignment 3 asserts error in a conclusion of law that the taxable situs of the cattle was not in Moody County. The trial court's finding defendant was a resident of Buffalo County and the cattle were not connected with any farm, but temporarily contained in feed lots supports that conclusion. Though the assignment does not so state, plaintiff's argument apparently is based on defendant's testimony the cattle were connected with a farm in Moody County and thus assessable there pursuant to SDC 57.0324 and not under SDC 57.0323. ¹ However, because the trial court found the cattle were not connected with a farm in Moody County, but were only temporarily contained in feed lots of persons other than defendant, the conclusion of law they did not have a taxable situs in Moody County property followed. In construing § 2059 of the Political Code of 1903, now in part SDC 1960 Supp. 57.0325 the court in Morse v. Stanley County, 26 S.D. 313, 128 N.W. 153, said the real intent was that livestock be taxed at such place as might be held to be the home of such stock while Judge Haney in the dissent stated residence situs was the rule, ranch situs the exception. ² Based on the court's finding the conclusion and judgment conform to these principles. They have been cited and applied in many opinions of the Attorney General. See 1951--1952 A.G.R. 59.

In assignment 4 plaintiff contends the trial court erred in failing to enter a conclusion of law from the stipulated facts that SDC 1960 Supp. 57.0325--3 authorized plaintiff to assess the cattle. That section is part of Chapter 432 of the 1959 Session Laws, Section 13 of which (SDC 1960 Supp. 57.0325--12) states the act applies only to cattle which 'range' or 'graze' in the state on extensive tracts of land where herds of livestock roam or graze at large as distinguished from feed lots where they are confined for finishing for market. Section 2 (SDC 1960 Supp. 57.0325--2) further defines 'ranging' and 'grazing' as pasturing on tracts of native grass of 70 acres or more. This act clearly does not apply to cattle in feed lots for the purpose of finishing for market which fact is undisputed here.

Plaintiff's assignment 6 claims error for failure to adopt a conclusion of law that defendant did not utilize administrative remedies referred to in its reply. ³ SDC 57.1027 permits defendant to 'set up by way of answer any defense which he may have to the collection of the taxes'. Lack of authority or jurisdiction to assess and tax property was a proper and permitted defense to the action.

The judgment is affirmed.

HOMEYER, P.J., and RENTTO and HANSON, JJ., concur.

ROBERTS, J., dissents.

ROBERTS, Judge (dissenting).

The defendant moved cattle from Buffalo County to Moody County for the purpose of fattening them for market. The present action was brought in the Circuit Court of Moody County for the recovery of taxes assessed upon the cattle. The trial court found that such property was assessable in Buffalo County and that plaintiff was not entitled to judgment.

The methods prescribed for the recovery of delinquent taxes are wholly statutory. SDC 1960 Supp. 57.1026 provides that it shall be sufficient for the county treasurer authorized to enforce collection of personal property taxes by civil action to allege that 'the taxes stand charged against the defendant, that the same are delinquent and unpaid, stating the year or years and the amount for each year, and such treasurer shall not be required to set forth in his complaint or by a bill of particulars any other or further matter relating thereto and the duplicate tax list or lists shall be prima facie evidence of the amount and validity of such taxes appearing due and unpaid thereon, * * *.' Where there is allegation and proof in compliance with these statutory provisions, the burden is upon the defendant taxpayer to prove facts set up by way of defense showing that the taxes are invalid. The statute provides that the county treasurer may commence such action in his name as treasurer. The county unquestionably has a remedial interest in a cause of action to enforce the collection of personal property taxes and no question is raised as to whether the county is a proper party plaintiff.

There is no dispute as to the material facts. It appears from the pleadings, stipulation of the parties and the findings of the trial court that the defendant resides in Buffalo County where he operates a...