Murrow v. Heath
| Decision Date | 11 March 1910 |
| Citation | 125 N.W. 259,146 Iowa 347 |
| Parties | C. H. MURROW, Treasurer, v. H. R. HEATH, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
APPEAL from a decree confirming the county treasurer's assessment of omitted property.--Modified and remanded.
Modified and remanded.
J. K Macomber, for appellant.
Clark & Hutchinson, for appellee.
About August 31, 1906, the defendant received from the county treasurer notice that, as informed, "certain moneys and credits" belonging to him or under his control, in the amount of $ 250,000 in 1906, and in each of the four preceding years, had been omitted from assessment, and September 14th at ten o'clock a. m. was designated as the time of hearing. At that time defendant appeared before the treasurer, but that officer referred him to the person employed under chapter 50, Acts 28th General Assembly, to discover omitted property, and commonly known as the tax ferret law, and after some conversation with the latter hearing was postponed until the next day. The defendant returned, but the treasurer was away, and plaintiff denied to the tax ferret that he had any property not assessed or liable to assessment, and asserted that he had paid all taxes he owed. Later, and on the same day, but without other or further hearing, he received notice and demand signed by the treasurer, stating that he had listed and assessed property at the actual value of $ 250,000 for each of the five years, and that unless the taxes amounting to $ 26,149.46 were paid within thirty days, suit would be instituted therefor. The defendant appealed to the district court, and upon hearing a motion of the treasurer to confirm the assessment was sustained, and judgment entered accordingly. Thereupon the defendant appealed to this court.
I. That jurisdiction was conferred on the district court by serving and filing the notice of appeal is settled by City of Marion v. Ry., 120 Iowa 259, 94 N.W. 501, followed in City of Marion v. Investment Co., 122 Iowa 629, 98 N.W. 488. Appellee contends, however, that the appeal should have been dismissed by the district court, as in effect it was, on the ground that no transcript of the treasurer's assessment was filed.
In the district court defendant filed a petition, to which he attached copies of the notice of appeal and of the notice of assessment and demand. This was amended, and a copy of the notice of the hearing before the treasurer set out. On the trial, the original demand signed by the treasurer as such was introduced in evidence. It notified defendant that he was assessed September 15, 1906, with property omitted, overlooked, and not listed, and demanded of him the amount the property should have been taxed with interest as follows:
Property to the amount of $ 250,000, omitted
in 1902; tax due $ 4,625; interest $ 1,040.63.
Total
$ 5,665.63
Property to the amount of $ 250,000, omitted
in 1903; tax due $ 4,562.50; interest $ 752.81.
Total
5,315.31
Property to the amount of $ 250,000, omitted
in 1904; tax due $ 4,531.25; interest $ 475.78.
Total
5,007.03
Property to the amount of $ 250,000, omitted
in 1905; tax due $ 4,968.75; interest $ 223.59.
Total
5,192.74
Property to the amount of $ 250,000, omitted
in 1906; tax due $ 4,968.75; interest .
Total
4,968.75
Total amount due
To this was added that, unless paid within thirty days, suit would be begun. It will be observed that this is the demand exacted by section 1374 of the Code, and purports to state the assessment as made, and on which the payment of taxes and interest was demanded. It was equivalent to a transcript of the assessment as entered in the treasurer's omitted property tax list book; and, as it was a paper such as the treasurer was authorized to execute in the procedure prescribed by section 1374 of the Code for the collection of taxes, the court, in the absence of anything to the contrary, should have treated it as sufficiently exemplifying the assessment as actually made. The trial proceeded on this theory. The absence of a transcript was not suggested at the hearing, and after the evidence had been introduced, the treasurer moved that the assessment as made by him be confirmed for that, among other things, it appeared that "H. R. Heath was assessed with moneys and credits," stating the amounts.
But appellee argues that a transcript has been held in former decisions to be essential to a review of an assessment.
In Frost v. Board of Review, 114 Iowa 103, there was nothing before the court indicating complaint by the tax payer or showing an assessment. In City of Marion v Railway, 120 Iowa 259, the filing of a transcript was held not to be jurisdictional and therefore that the court did not err in allowing it to be filed in the course of the trial. This was followed in City of Marion v. Nat. Loan & Ins. Co., 122 Iowa 629, 98 N.W. 488, the court saying that: "While jurisdiction is conferred by service and filing of a proper notice, it is nevertheless proper that a transcript be filed; and the court should require the filing thereof, not only that the proceedings upon which the appeal is based may be clearly and fairly brought to the attention of the court, but that the court record may furnish a proper basis upon which to rest a decree." In Peterson v. Board of Review, 138 Iowa 717, neither notice of appeal nor transcript was filed. Nothing in that case indicates an intention to overrule the cited cases, and all held was that to warrant a review of an assessment, such assessment, or the next best evidence thereof (a certified copy), must be before the court. What was said in the City of Marion v. Nat. L. & I. Co., supra, and quoted in the Peterson case-- i. e., that "consent of parties, much less mere silence on the part of the appellee, can not be accepted as sufficient to take the place of a record showing the essential fact of jurisdiction"--had reference to the making of complaint before the board of review and not to the filing of a transcript. The transcript is, in the nature of things, the only competent evidence of what the board of review has done, but the treasurer is required to notify the delinquent of the assessment of his property, and demand payment of the taxes. In so doing he is under precisely the same obligation to truly state the assessment and the taxes claimed as he would be in certifying a copy of the omitted property assessment book. Being an instrument signed by the treasurer as such and authorized by law, it was sufficient to show all the facts essential to a review; i. e., the listing of the property and its valuation. As argued by appellee, the demand exacted by statute is not the assessment. Neither is it the transcript. But each is an official statement of what the assessment is, one a recital thereof by the treasurer as a basis of...
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