Oregon Short Line Railroad Co. v. Ballantyne

• Decision Date: 05 November 1929
• Docket Number: 5328,5327
• Citation: Oregon Short Line Railroad Co. v. Ballantyne, 282 P. 80, 48 Idaho 351 (Idaho 1929)
• Parties: OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Respondent, v. ETHOL BALLANTYNE, as Treasurer and Ex-officio Tax Collector of Jefferson County, Idaho, JEFFERSON COUNTY, a Municipal Corporation of the State of Idaho, and FREMONT COUNTY HIGHWAY DISTRICT No. 1, in Jefferson County, Idaho, a Quasi-Municipal Corporation, Appellants
• Court: Idaho Supreme Court

282 P. 80

48 Idaho 351

OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Respondent, v. ETHOL BALLANTYNE, as Treasurer and Ex-officio Tax Collector of Jefferson County, Idaho, JEFFERSON COUNTY, a Municipal Corporation of the State of Idaho, and FREMONT COUNTY HIGHWAY DISTRICT No. 1, in Jefferson County, Idaho, a Quasi-Municipal Corporation, Appellants

Nos. 5327, 5328

Supreme Court of Idaho

November 5, 1929

APPEAL AND ERROR-SUFFICIENCY OF ASSIGNMENTS OF ERROR-PLEADING-WAIVER OF DEFECTS.

1. Where no action was taken on demurrer to complaint, alleged error in overruling of demurrer was not before supreme court.

2. Local and Special Laws 1927, chap. 89, validated organization of Mud Lake District off existing Fremont District, but description included lands of adjacent Camas-Monteview District. Chapter 88 validated organization of Camas-Monteview District. Chapter 115 validated organization of Fremont District, including territory cut off from Fremont District and included in new Mud Lake District. Chapter 5 validated creation of all then-existing highway districts and thereafter Mud Lake District was disorganized and reannexed, without compliance with Laws 1927, chap. 252. Railroad company paid taxes assessed on property lying within disorganized Mud Lake District under protest. Railroad company sued to recover such taxes paid under protest, but complainant failed to set up facts on which conclusions therein were based. Defendant's answer, however, set up such facts. Held, defects in complaint were cured by answer and could not be urged on appeal.

3. Stipulation of facts by agreement generally waives objection to pleadings which might have been cured by amendment.

4. Assignment of error that court erred in rendering judgment in favor of plaintiff and against defendant held not sufficiently specific, under supreme court rule 40, to present question for review.

APPEALS from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C. J. Taylor, Judge.

Actions to recover taxes paid under protest. Judgments for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Ralph L. Albaugh and F. A. McCall, for Appellants, cite no authorities on points decided.

Geo. H. Smith, H. B. Thompson and L. H. Anderson, for Respondent.

Where, following the filing of a demurrer, an answer is filed and the parties proceed to trial, without a ruling on the demurrer, such demurrer is deemed waived or withdrawn. ( Ludwig v. Ellis, 22 Idaho 475, 126 P. 769; Security Sav. Bank v. Kellems, (Mo.) 9 S.W.2d 967; Motor Sales Corp. v. Whaley, 20 Ala. App. 35, 101 So. 475, Id., 211 Ala. 624, 101 So. 478.)

The insufficiency of the allegations of a complaint cannot be urged upon appeal where it appears from the record that the defect in the complaint urged is cured by allegations in the answer covering the matter which it is claimed should have been contained in the complaint. (Ludwig v. Ellis, supra; Bell v. Stadler, 31 Idaho 568, 174 P. 129; Hindman v. Oregon Short Line R. R. Co., 32 Idaho 133, 178 P. 837; Grasswich v. Miller, 82 Mont. 364, 267 P. 299; Ackley v. Maggi, 86 Cal.App. 631, 261 P. 311; New York Life Ins. Co. v. Rees, 19 F.2d 781.)

The submission of a case on an agreed statement of facts constitutes a waiver of any defects or insufficiency in the pleadings. (Willard v. Wood, 135 U.S. 309, 314, 10 S.Ct. 831, 34 L.Ed. 210, 214; Saltonstall v. Russell, 152 U.S. 628, 14 S.Ct. 733, 38 L.Ed. 576; 8 A. L. R. 1172; 31 Cyc. 724; Sachs v. Hensley, 220 Ky. 226, 294 S.W. 1073; Williams v. Hays, 175 Ky. 170, 193 S.W. 1046; Peters v. Farmers' State Bank, 106 Kan. 1, 8 A. L. R. 1170, 185 P. 892.)

VARIAN, J. Budge, C. J., and Givens, T. Bailey Lee and Wm. E. Lee, JJ., concur.

OPINION

VARIAN, J.

For many years prior to October 11, 1926, two highway districts lay adjoining each other in Jefferson county: Fremont County Highway District No. 1 (hereinafter referred to as Fremont District), and Camas-Monteview Highway District (hereinafter referred to as Camas-Monteview District). On that day, certain qualified residents of a part of the Fremont District adjoining the Camas-Monteview District petitioned the board of county commissioners for the organization of a new highway district, to be carved out of the Fremont District and to be known as Mud Lake Highway District. The county commissioners adopted a resolution ordering a special election to determine whether the new district should be organized, but in the resolution, instead of describing the lands mentioned in the petition, they described those lands and also all the territory of the adjacent Camas-Monteview District. An election held pursuant to the resolution carried in the affirmative. On December 6, 1926, the county commissioners, by order, declared the Mud Lake District organized, but the order again described the lands mentioned in the original petition for the new district and also all the territory of the Camas-Monteview District. It may be noticed here that no irregularity in this proceeding for the creation of the Mud Lake District is called to our attention except the faulty description of the territory in the resolution and order of the board of county commissioners.

The Governor appointed commissioners for the new Mud Lake District, who accepted the appointments, organized as a board, and appointed a chairman, but never executed or filed oaths of office or official bonds as required by law; the district never levied or collected any taxes, nor did any work on its roads.

The 1927 session of the legislature, by House Bill No. 348 (Local and Special Laws, 1927, chap. 89, p. 423), validated the organization of the new Mud Lake District, including the lands of the Camas-Monteview District; by House Bill No. 347 (Local and Special Laws, 1927, chap. 88, p. 419), validated the organization of the Camas-Monteview District; and, by House Bill No. 465 (Local and Special Laws, 1927, chap. 115, p. 535), validated the organization of the Fremont District, including the territory cut off from the Fremont District and included in the new Mud Lake District. All of these acts were approved on the same day, March 15, 1927. In addition, the legislature passed a general curative act (Sess. Laws 1927, chap. 5) which validated the creation of all then existing highway districts (section 1).

On September 27, 1927, a petition was filed with the board of county commissioners, praying that the Mud Lake District be disorganized, and after a hearing, the commissioners, on October 5, 1927, made an order disorganizing the district. The Mud Lake District was described, both in the petition and order, as including the lands of the Camas-Monteview District. Otherwise, it appears that the proceedings for disorganization were in all respects regular.

On October 6, 1927, the board of commissioners of the Fremont District ordered a special election to determine whether the territory formerly embraced within the Mud Lake District, including the territory of the Camas-Monteview District, should be annexed to the Fremont District. Notice of such election was published, the election held, and resulted favorably to annexation. On October 25, 1927, the commissioners of the Fremont District made an order by which it was decreed that the territory formerly embraced within the Mud Lake District, exclusive of that lying within the limits of the Camas-Monteview District, be annexed to the Fremont District.

This attempted annexation, or reannexation, was not in compliance with the law in force at the time (Sess. Laws 1927, chap. 252, p. 418), in that the petition here was addressed to the commissioners of the Fremont District instead of to the county commissioners, and the result was determined by special election instead of by notice and hearing followed by election, as the statute directed. Besides, the order directing the election described the territory to be annexed as including that of the Camas-Monteview District, although the order declaring the annexation did not.

Thereafter, the board of commissioners of Fremont District made certain tax levies for 1927 upon the lands within the district, including the tax levies in question, which were levied on the property of respondent lying within the limits of the former Mud Lake District exclusive of the territory comprising the Camas-Monteview District. These levies were by the county auditor and assessor extended on the tax-rolls of Jefferson county.

On December 21, 1927, ...