Remey v. City Council of Burlington

• Decision Date: 03 June 1890
• Parties: REMEY v. CITY COUNCIL OF BURLINGTON.
• Court: Iowa Supreme Court

80 Iowa 470

45 N.W. 899

REMEY

v.CITY COUNCIL OF BURLINGTON.

Supreme Court of Iowa.

June 3, 1890.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

Proceeding by certiorari to have set aside the assessment of certain personal property, and taxes levied thereon. There was a trial by the court, and a judgment in favor of plaintiff. The defendant appeals.Seerley & Clark, for appellant.

P. Henry Smyth & Son and Power & Huston, for appellee.

ROBINSON, J.

The plaintiff is a native of the city of Burlington, and resided therein until the year 1884. In October of that year, she left Iowa, and has since that time resided with her husband, who is a naval officer in the navy-yards at Washington, D. C., and at Norfolk, Va. In May, 1888, the defendant appointed an advisory committee on the equalization of assessments. On the 11th day of the same month the committee made the following report: “Your advisory committee recommend that the following assessments be increased as indicated. * * * Mary J. Remey, nothing to twenty-thousand dollars.” At an adjourned meeting, held on the 21st day of the month, to consider the proposed changes in assessments, the plaintiff appeared by attorney, and objected to the proposed increase in her assessment on the ground that she was not a resident of Iowa, but of Virginia. Her objection was supported by an affidavit as to her alleged place of residence. Her objection was disregarded, and her assessment was increased as recommended by the committee. The petition in this case was filed on the 14th day of July, 1888, and the writ was issued, and on the 16th day of that month was served on the mayor and clerk of the city of Burlington. On the 26th day of December, 1888, the defendant appeared generally, and demurred to the petition on the ground that, although it alleged that plaintiff had abandoned the city of Burlington as a residence, with no intention of returning thereto, it did not show that she had acquired a residence elsewhere. On the 19th day of January, 1889, the clerk filed the proceedings of defendant, so far as they relate to the matter in controversy. February 11, 1889, defendant asked leave to withdraw the demurrer, and asked for one week in which to file an answer. On the 31st day of May, 1889, the mayor and clerk made return to the writ showing the proceedings of the board, but alleging that they were not members of it. On the same day they filed a motion to dismiss the proceedings on the ground that they were not members of the board of equalization, but were the only parties served with the writ, and on the further ground that remedy of plaintiff was by appeal, and not by certiorari, for the reason that the board had acted within its jurisdiction. The motion was overruled, and the members of the council of the city of Burlington for the year which commenced in March, 1888, filed a return to the writ. The return alleged that none of the members of the council had been served with the writ, or any notice of this proceeding, and that the proper remedy of plaintiff was by appeal, and not by certiorari. The proceedings of the board were set out in the return. The court found that on the 1st day of January, 1888, and for a long time prior thereto, the domicile of plaintiff was in the city of Washington, and that defendant had no jurisdiction to make the assessment in question. It was declared void, and the collection of taxes thereon was prohibited.

1. Appellant contends that the court had no jurisdiction to try the cause for the reason that, while the writ was directed to the mayor, city council, and clerk of the city of Burlington, it was only served on the mayor and clerk, and, therefore, that jurisdiction of the board of equalization was not acquired; that as the board did not make return to the writ until after the expiration of one year from the time the action of the board complained of was taken, such return did not confer jurisdiction. Section 3224 of the Code providesthat no writ shall be granted more than 12 months after the action alleged to have been illegal was taken; and it may be conceded, for the purposes of this case, that the writ could not be issued after that time by agreement of parties. But the writ was issued in this case in due time. Its purpose was to bring the defendant into court, and compel a proper return thereto. The defendant entered an appearance to the proceeding before the expiration of the 12 months specified in the statute. The members of the council, it is true, made their return after that time. But it is not required that the return be made within the time aforesaid. We think the defects in the writ, and in the service thereof, if any, were cured by the subsequent appearance of the necessary parties. See Richman v. Board of Supervisors, 70 Iowa, 629, 26 N. W. Rep. 24.

2. It is insisted by appellant that the evidence does not show that plaintiff has acquired a domicile since she left Iowa, in 1884, and that, under the admitted facts of the case, the burden is on her to show that she had a domcile outside the state on the 1st day of January, 1888. The action is to be prosecuted by ordinary proceedings, so far as applicable, and an...