Munson v. Miller

• Decision Date: 30 September 1872
• Citation: Munson v. Miller, 66 Ill. 380, 1872 WL 8585 (Ill. 1872)
• Parties: CHARLES N. MUNSON, Collector, etc.v.JOHN S. MILLER.
• Court: Illinois Supreme Court

66 Ill. 380

1872 WL 8585 (Ill.)

CHARLES N. MUNSON, Collector, etc.

v.JOHN S. MILLER.

Supreme Court of Illinois.

September Term, 1872.

WRIT OF ERROR to the Circuit Court of Whiteside county, the Hon. W. W. HEATON, Judge, presiding. Messrs. DINSMOOR & STAGER, for the plaintiff in error.

Mr. J. E. MCPHERRAN, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill in equity, filed by defendant in error, in the Whiteside circuit court, against plaintiff in error, to enjoin the collection of a tax levied on the property of defendant in error.

The bill alleges that, sometime in the month of April, 1870, the assessor called upon defendant in error for a list of his taxable property, and that he gave to the assessor a full and complete statement and list of all his personal property and his outstanding liabilities, and the assessor made such return as the law required; that the county clerk did, sometime during the year 1871, enter on the tax books of the town of Sterling, as an assessment of personal property, $5810, which he claimed had been omitted from the assessment for taxes for the previous year, and extended a tax of $265.04 on the property thus placed on the assessment roll by him, which was then on the collector's books for collection against him; that complainant, in good faith, listed all of the personal property, rights, credits and moneys of which he was the owner or possessor at that time; also his indebtedness outstanding, growing out of and immediately connected with such moneys, rights, credits and personal property, and paid the tax assessed thereon soon after it became payable in due course of law.

It is alleged that complainant is unable to state whether the clerk, or other authority making the assessment, regarded the assessment upon complainant's personal property as being too low in the year 1870, or whether some particular piece or class of personal property had not been assessed, but it is alleged that the personal property of which he was the owner when the assessment was made in 1870, was stated fully and particularly with debts due and owing out of the same, to the assessor, without any reservation whatever. The collector is made a party defendant, and the bill prays the tax levied on the value of the property placed on the assessor's books by the clerk, be perpetually enjoined.

The defendant filed an answer, and exceptions were filed to portions of it, which were sustained, and a trial had on the bill and such portions of the answer as remained after the exceptions were sustained.

There was no default taken, nor was any proof heard. In this there was error.

Upon turning to the record, we find that the answer concludes with a general traverse of the allegations of the bill. This, of course, put complainant upon the proof of every material allegation of the bill, if it contained grounds for equitable relief.

Discarding the portions of the answer stricken out on exceptions, and when stricken out they cease to be a part of the record, there is no evidence as to who made the assessment, or the manner in which it was done. For aught that appears, the tax may have been assessed in the due course of law, and in all respects regularly, and without any error.

Defendant in error has alleged that the tax was illegal, and he, to succeed, must prove it as alleged. The collector's books are prima facie evidence that the tax is, in all respects, legal and valid, and that evidence must be rebutted.

But had the court below jurisdiction to enjoin this tax? The bill alleges that the county clerk assessed the property and extended the tax. The act of 1855, sec. 5, p. 37, provides that the clerk of the county ...