Pelton v. Bemis

• Decision Date: 23 February 1886
• Citation: 44 Ohio St. 51,4 N.E. 714
• Parties: PELTON v. BEMIS.
• Court: Ohio Supreme Court

4 N.E. 714

44 Ohio St. 51

PELTON v. BEMIS.

Supreme Court of Ohio.

February 23, 1886

Error to district court, Cuyahoga county.

The plaintiff below, Fred. C. Bemis, commenced his action in the court of common pleas under sections 5848 and 5850 of the Revised Statutes, to recover back certain assessments upon his property, that he had paid to the defendant as treasurer of the county. The petition, containing a cause of action for each payment, (four in all,) was filed on June 24, 1879. The averments of the first cause of action are as follows:

‘ The plaintiff alleges (1) that during the years 1876, 1877 and 1878 the defendant, Frederick W. Pelton, was treasurer of Cuyahoga county, and the plaintiff was and still is the owner of sublots 29, 30, and 31 of Nicola and Judson's allotment of a part of original lot 328, all of which lots have a frontage and are situated on Kinsman street, in the city of Cleveland, county and state aforesaid. (2) That on the fifth day of September, A. D. 1876, the city of Cleveland, a municipal corporation under the laws of the state of Ohio, by the passage of a so-called ordinance by the city council of said city, caused a special assessment for the grading, draining, paving, and improving of Kinsman street, in said city of Cleveland, to be made and levied upon all of the aforesaid lots in the total sum of nine hundred and eighty-two dollars and five cents, ($982.05,) payable, in five annual installments, to the treasurer of Cuyahoga county; the first installment payable on or before the twentieth day of December, A. D. 1876, and one installment annually thereafter until all should be paid; and that said city of Cleveland caused and procured said special assessment to be entered upon the general duplicate for the collection of taxes in and for said county of Cuyahoga. And this plaintiff further alleges and avers that said special assessment, so made, levied, and entered upon said general duplicate as aforesaid, was and is wholly illegal and void. (3) This plaintiff further says that on the eighth day of November, A. D. 1876, the defendant, Frederick W. Pelton then treasurer of Cuyahoga county, at his office, in said city of Cleveland, refused to receive from said plaintiff the state, county, and city taxes, exclusive of said special assessment charged on the duplicate against the aforesaid lots of this plaintiff, and thereby illegally and wrongfully forced and compelled this plaintiff to pay to said defendant and this plaintiff did then and there, under said force and compulsion, in order to save the aforesaid lots from being returned as delinquent and sold, pay to said defendant the sum of $98.20; the said sum being the first half of the first installment claimed to be due upon said special assessment so as aforesaid made, levied, and entered upon said duplicate. And this plaintiff further says that, at the time of making the aforesaid payment to said defendant, he entered his solemn protest against the payment of the same.’

The second cause of action is substantially as the first, except that the payment was made on June 15, 1877.

The third cause of action was substantially as the first, except that the assessment was for the sum of $1,309.40, and covered an additional lot; and the installment $130.94, sought to be recovered back, was paid on January 18, 1878.

The fourth cause was substantially as the last, except that the installment $98.20 was paid on June 24, 1878,-just within the year prior to the commencement of the action.

The defendant demurred separately to each cause of action, on the ground that it did not state facts sufficient to constitute a cause of action; and finally, upon the same ground, to the entire petition. The court sustained the demurrer to the first, second, and third, and overruled it as to the fourth cause of action; and, there being neither amendment nor further pleading, judgment was rendered for the defendant upon the first three causes of action, and against him for the sum of $98.20 on the last one. On a proceeding in error, the district court of the county affirmed the judgment of the common pleas on each cause of action; and this proceeding is now prosecuted in this court, on the petition of defendant below, to reverse the judgment against him upon the fourth cause of action; and, by the plaintiff below, upon a cross-petition to reverse the judgment against him upon the first three causes of action. The demurrer to the first three causes of action was sustained on the ground that each one was barred by the limitation contained in section 5848 of the Revised Statutes, to-wit, one year from the payment of the assessment; and this is assigned for error by the plaintiff below upon his cross-petition. The plaintiff in error claims that (1) it does not sufficiently appear in the petition that the assessment was illegal, and (2) the petition does not show an involuntary payment; and for these reasons asks that the judgments against him be reversed.

In an action brought under Rev.St. § 5848 (See Gen.Code, § 12075) to...