Pennock v. Douglas Cnty.

• Decision Date: 07 February 1894
• Citation: Pennock v. Douglas Cnty., 39 Neb. 293, 58 N.W. 117 (Neb. 1894)
• Parties: PENNOCK v. DOUGLAS COUNTY ET AL.
• Court: Nebraska Supreme Court

39 Neb. 293

58 N.W. 117

PENNOCK

v.DOUGLAS COUNTY ET AL.

Supreme Court of Nebraska.

Feb. 7, 1894.

Syllabus by the Court.

In the absence of an express statutory mandate, a city of the metropolitan class cannot be compelled, either at law or in equity, to refund money received by it from a purchaser of real estate at a sale made thereof by the county treasurer for the purpose of collecting a special assessment or tax levied against such real estate by said city, and for which special assessment or tax said real estate was not liable. The rule caveat emptor applies with full force to such a purchaser.

Appeal from district court, Douglas county; Wakeley, Judge.

Action by Ames C. Pennock against the county of Douglas and others to recover illegal taxes paid. There was decree for defendants, and plaintiff appeals. Affirmed.

H. W. Pennock, for appellant.

A. J. Poppleton and W. J. Connell, for appellees.

RAGAN, C.

Ames C. Pennock brought this suit to the district court of Douglas county against the city of Omaha, the county of Douglas, and one John Rush, the treasurer of Douglas county. The county interposed a demurrer to Pennock's petition on the ground, generally, that it did not state facts sufficient to constitute a cause of action, and, specially, that it appeared from Pennock's petition that the claim sued for therein had been by him presented to the board of supervisors of Douglas county, and by them rejected, and that he had not prosecuted an appeal from the order of said supervisors rejecting said claim. The city of Omaha also demurred to Pennock's petition on the ground that the same did not state a cause of action. There was no appearance by, or service upon, Rush. The district court sustained the demurrers, and dismissed Pennock's case, and he comes here on appeal.

His counsel thus stated the facts in this case: “The petition alleges, for first cause of action, that in the year 1883 the city council of the city of Omaha created, by ordinance, paving district No. 6, comprising a portion of St. Mary's avenue, in said city. That in the year 1884 said city council passed an ordinance providing for the curbing and guttering of said street in said paving district, and levied a tax upon the abutting property to pay for the same. That in the same year said city council passed an ordinance providing for the paving of said avenue in said paving district, and levying a paving tax upon the abutting property to pay for the same. That lot eight, (8,) in block two, (2,) in Kountze & Ruth's addition to the city of Omaha was levied upon for said purpose, and the city treasurer was directed to collect said special assessments as other taxes. That in September, 1885, said city treasurer certified to the county treasurer of Douglas county the amount of said special assessments which were then due and delinquent upon said lot, and said county treasurer, after advertising the same in the manner provided by law, sold said lot to the plaintiff at private tax sale on the 28th day of December, 1885. That the plaintiff received of said treasurer a certificate of tax sale in the usual form. That the plaintiff paid to the county treasurer the full amount of said special assessments and interest, amounting to $45.98. Some time after said tax sale to the plaintiff, the owner of said lot, with other adjacent property holders, applied to the city council, by written petition, for relief against said special assessments, on the ground that the same were illegal and void. That said council refused to grant the relief asked. That on the ______ day of September, 1887, and more than three months before the time of redemption had expired, the plaintiff served the notice required by section 123 of the revenue law, for the taking out of a tax deed. That after serving the said notice, and before two years from tax sale had expired, the owner of said lot applied to the district court of Douglas county for a perpetual injunction restraining the collection of said special assessments, and any further proceedings under said sale; also, praying that said assessments be adjudged illegal and void, and no lien upon said lot. On the 20th day of December, 1888, final decree was rendered in said cause, granting the request of said plaintiff, and perpetually enjoining plaintiff herein from enforcing his tax sale against said property, and declaring that said special assessments were illegal and void and no lien upon said lot. That no appeal has ever been taken from said decree, and the same is in full force and effect, and that plaintiff's consideration at said tax sale has wholly failed. That afterwards the plaintiff applied to the county commissioners of Douglas county for repayment of the money expended at said sale, which was by said commissioners refused. That afterwards the plaintiff applied to the city council of the city of Omaha likewise for reimbursement of the money so expended at said tax sale, which was by said city council refused. That plaintiff had used due care and diligence in the purchase of said lot for taxes, and had no means of knowing, or reasons for suspecting, that said lot was not legally and properly assessed for said improvements, and that, through the representations of the city and its officers, he had been induced to purchase at said tax sale. That, by reason of the illegal acts of the city in the premises, the consideration of said sale had entirely failed. That the city council has authority, under a special clause of the statute, to make a supplemental assessment and levy upon the property abutting on St. Mary's avenue, to correct any error, omission, or mistake in the first assessment or levy, and that said city may thus fully reimburse itself in the premises. Second, third, and fourth causes of action contain similar allegations with reference to adjacent lots bought by the plaintiff for the same special assessments, at the same time, and under the same conditions. Prayer: (1) That the county of Douglas be required to refund to the plaintiff the amount so paid at said void tax sale, with interest; (2) that in case said county be held not liable, that John Rush, the then county treasurer of said county, who made said illegal sales, be required to pay said amount, with interest; (3) that in case neither the county of Douglas nor John Rush be held liable, that the city of Omaha be adjudged to be liable to the plaintiff as for money had and received from the plaintiff; that in that case the city be adjudged to pay to the plaintiff the amount so paid by the plaintiff, with interest at the rate of seven per cent. per annum, and for such other relief as may be in accordance with equity and justice.”

If appellant's claim is one for which Douglas county was liable, then, to entitle him to recover against the county, he should have filed such claim with its county clerk, had it passed upon by the county board of supervisors or commissioners, and appealed from their decision, if the same was unsatisfactory, to the district court. In no other manner could the district court acquire jurisdiction of a suit against the county, founded on such a claim as the one sued on here by the appellant. Comp. St. 1893, c. 18, § 37; Brown v. Commissioners, 6 Neb. 111; State v. Board of County Com'rs, Id. 454; Dixon Co. v. Barnes, 13 Neb. 294, 13 N. W. 623;Richardson Co. v. Hull, 24 Neb. 536, 39 N. W. 608. Appellant alleged that he duly filed his claim against Douglas county, and that it was rejected by the supervisors or county commissioners thereof; but it does not appear from the record before us that appellant has ever appealed from the order rejecting his claim, much less that the present suit is a prosecution of such an appeal. The judgment of the district court, then, dismissing appellant's suit against Douglas county, was right. It may be that Douglas county would have been liable for appellant's claim had he pursued the remedies provided by the statute. Comp. St. 1893, c. 77, § 131; Richardson Co. v. Hull, 24 Neb. 536, 39 N. W. 608;Roberts v. Adams Co., 18 Neb. 471, 25 N. W. 726;Wilson v. Butler Co., 26 Neb. 676, 42 N. W. 891. But that question is not before us, and we express no opinion on the point.

The question presented by this appeal is this: In the absence of an express statutory mandate, can a city of the metropolitan class be compelled to refund money received by it from a purchaser of real estate at a sale made thereof by the county treasurer for the purpose of collecting a special assessment or tax levied against such real estate by said city, and for which special assessment or tax said real estate was not liable? The learned counsel for appellant contends that the rule caveat emptor does not apply to such a purchaser, and in support of this contention, and that the question stated above should be answered in the affirmative, has furnished us an able and exhaustive brief and argument, in which he has cited many authorities. We have carefully examined all the cases cited by him, and it is not to be denied that the contention of counsel is supported by the decisions of the courts whose opinions are entitled to much weight. The rule contended for by appellant seems to be the doctrine of the supreme court of Iowa. In Corbin v. City of Davenport, 9 Iowa, 239, it is said: “A purchaser at an invalid sale of property by a city for taxes may recover from the city the amount of the purchase money and interest.” It does not appear from the opinion that it was predicated upon a statute making cities liable in such cases. Such, also, seems to be the rule in Wisconsin. In Norton v. Supervisors, 13 Wis. 684, it is said: “Where a tax sale is void, the county is liable to the holder of certificates issued on such sale for the amount paid, with interest. The statute makes it the duty of the treasurer to refund the money in such cases, on demand, to the purchaser or his assigns; but the liability of the county does not depend...