Padlock Ranch, Inc. v. Smith

• Decision Date: 22 May 1928
• Docket Number: 1449
• Citation: 267 P. 512,38 Wyo. 393
• Parties: PADLOCK RANCH, INC. v. SMITH, ET AL. [*]
• Court: Wyoming Supreme Court

267 P. 512

38 Wyo. 393

PADLOCK RANCH, INC. v. SMITH, ET AL. ^[*]

No. 1449

Supreme Court of Wyoming

May 22, 1928

APPEAL from District Court, Hot Springs County; PERCY W. METZ Judge.

Action in replevin by Padlock Ranch, Inc., against Glenn E. Smith Treasurer of Hot Springs County, Wyoming, and another. From judgment for plaintiff, defendants appeal.

Judgment affirmed.

F. B Sheldon, Jr., for appellants.

Appellants defended against the replevin action on the ground that the property was restrained for delinquent taxes, under the statute, 2842, 2859, 2860, C. S. The property of the class seized, was assessed in Fremont County in 1921 and carried to the delinquent tax books for that year, and thus made subject to distraint for unpaid taxes, Farm & Cattle Co. v. Faulkner, 242 P. 419; Noble v. Amoretti, 11 Wyo. 259; Cooley Taxation (4th Ed.) Sec. 1073; plaintiff did not prove ownership of the sheep; Cheeseman v. Fenton, 13 Wyo. 347; the presumption is that the tax was lawfully levied, Cooley Taxation Secs. 1038, 1073; taxing laws should be construed together, Co. v. Baird, 8 Wyo. 111; the law does not require the property to be in the tax district at the time of the levy, Cooley Taxation (4th Ed.) 288, 289; the burden was upon respondents to show ownership of the sheep and that they were not the sheep assessed in Fremont County in 1922, Farm & Cattle Co. v. Faulkner, supra.

E. E. Enterline and C. W. Axtell, for respondents.

All that was required of plaintiff was to establish a prima facie case of ownership and right of possession, Cheeseman v. Fenton, 13 Wyo. 432; and there is no evidence tending to establish that any of the sheep in controversy were assessed to McKenna or Lost Cabin Sheep Company, except the declarations of Coyne, which were improperly admitted over the objections interposed by plaintiff, 22 C. J. 388; Bank v. Electric Works, (N. H.) 62 A. 971; the Smith testimony should have been excluded, Parker v. Co., 138 P. 1061; 5 Fletcher Corp. 3104; 3 Fletcher Corp. 2160; the declarations of Coyne were incompetent, (a) they were not made in regard to a matter within the scope of his authority (b) they were merely an expression of an opinion; Cronberg v. Johnson, 29 Wyo. 11; the doctrine of confusion of goods is not applicable, it not having been shown that there was an actual confusion; the assessment roll must contain a description of the property, 2775-2787; L. 1923, ch. 70; Sec. 2788, 2789. Sections of the statute governing taxation, and material to the present controversy are 2836 and 2842 C. S.; tax proceedings are to be strictly construed, Hecht v. Bouten, 2 Wyo. 385; Carton v. Board, 10 Wyo. 416; VerStraten v. Board, (Wyo.) 246 P. 916; defendant Ewers levied distress upon 77 head of the sheep in controversy in Fremont County and then drove them into Hot Springs County; the judgment against Ewers was correct; and even if defendant Smith had a right to prevail and recover for the number of sheep he seized, the judgment would have to be affirmed, because of the joint assignment of error, McIntosh v. Wales, 21 Wyo. 397; Hanover Co. v. Nelson, 22 Wyo. 427; Meador v. Blonde, 34 Wyo. 397.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an action in replevin, brought on August 22, 1925, the plaintiff alleging that it is the owner of and entitled to the immediate possession of the property. The defendants claim the property in suit under a distraint for delinquent taxes. The court rendered judgment for the plaintiff, from which the defendants have appealed.

In the year 1922, an assessment for taxes was made against one W. D. McKeon for several thousand head of sheep, the taxes levied thereon in accordance with the law amounting to $ 881.39. These taxes were not paid. McKeon was in fact the manager of the Lost Cabin Sheep Company, and upon the theory, apparently, that the sheep so assessed and taxed were not in fact the sheep of McKeon, but the property of the Sheep Company, an order was entered by the Board of Commissioners, but not till December, 1924, to the effect that the records be corrected, so that the assessment should appear as against the Lost Cabin Sheep Company. A line was, accordingly, drawn through the name W. D. McKeon, and the name "Lost Cabin Sheep Company" written above it. In November, 1922, the respondent bought some sheep from that company, the number of which does not appear. After the above mentioned correction in the assessment had been made, and about the month of August, 1925, the treasurer of Fremont County in conjunction with the treasurer of Hot Springs County seized, under a delinquent-tax warrant, about 250 sheep, in controversy in this case, from among two bands of sheep, upon the theory that these were part of the sheep assessed for taxes above mentioned. One of the bands was at the time located in Fremont County, the other in Hot Springs County, but the treasurer of Fremont County drove the band located in that county over into Hot Springs County, and the distraint for taxes was actually made in the latter county. There is some question as to the regularity in reference to the distraint, but it is unnecessary to consider the contentions in regard thereto. The defendants, treasurers respectively of Fremont and Hot Springs Counties, knew nothing of the identity of the sheep personally, but they testified that one Coyne, vice-president of the respondent, stated to them at the time of the distraint of the sheep that some of the sheep bought by respondent from the Lost Cabin Sheep Company "might" be in the two bands and that this might be determined by examining the slits in the ear and by "mouthing" the sheep, which was done. Only sheep six years old were seized, being identified in the manner stated. W. D. McKeon, above named, and who seems to have been manager of the Lost Cabin Sheep Company during 1922, apparently was present, assisting appellants, but, strangely enough, there is no testimony in the record that he was called upon to identify, or that he did, identify the sheep, when he, it would seem, was in better position to do so than anyone else. The testimony on behalf of the respondent showed, among other things, that Coyne knew nothing about sheep and that he had no authority whatsoever to bind the respondent by any declaration which he may have made. The testimony further tended to show that it is impossible to identify sheep by a slit in the ears several years after such marks have been made, as was true with the sheep in question.

The assessment in this case not having been made against the Padlock Ranch Company, it was not responsible for the...