Richards v. Comm'rs of Clay Cnty.

• Decision Date: 03 April 1894
• Citation: Richards v. Comm'rs of Clay Cnty., 40 Neb. 45, 58 N.W. 594 (Neb. 1894)
• Parties: RICHARDS ET AL. v. COMMISSIONERS OF CLAY COUNTY.
• Court: Nebraska Supreme Court

40 Neb. 45

58 N.W. 594

RICHARDS ET AL.

v.COMMISSIONERS OF CLAY COUNTY.

Supreme Court of Nebraska.

April 3, 1894.

Syllabus by the Court.

1.Taxes are not debts in the ordinary acceptance of the term, and generally an action at law will not lie for their collection.While the right to an action may be implied from a failure of the legislature to provide any means for enforcing the payment of taxes, yet, where the legislature has provided a means of enforcing payment, that remedy is exclusive.

2.Where the legislature, in providing for the collection of taxes, has prescribed a remedy by action under certain circumstances in a particular forum and in a particular manner, no action will lie, except under the circumstances prescribed, in the forum provided, and after the manner defined.

3.A. and B. owned certain personal property assessed for taxation in Clay county.Before the tax became delinquent, they removed the property from Clay county.A. and B. were both nonresidents of the state.The county commissioners of Clay county brought an action in York county, and attached property of A. there situate.York county was not the place of abode of either A. or B.No tax claim had been forwarded to York county, nor had the action been authorized by the treasurer or any tax collector of York county.Held, that the case did not fall within any of the provisions of section 89 of the revenue law providing for the collection of taxes, and, the remedy provided by that law being exclusive, the action will not lie.

Error to district court, York county; Wheeler, Judge.

Action by the county commissioners of Clay county against Sanford Richards and others to recover personal taxes.Plaintiffs had judgment, and defendant Richards brings error.Reversed.

Sedgwick & Power, for plaintiff in error.

Wm. M. Clark, for defendants in error.

IRVINE, C.

The county commissioners of Clay county began this action in the district court of York county against Sanford Richards, Edward Bailey, and David Bailey, alleged to have been copartners under the firm name of Richards, Bailey & Bailey, to recover certain personal taxes assessed and levied for the year 1888 upon corn owned by the firm, and at the time of the assessment stored in cribs in Clay county.The petition, in addition to the above facts, avers that before the tax became due and delinquent the defendants sold and removed all their personal property out of Clay county; that a distress warrant was issued in Clay county, and returned unsatisfied; that the firm has no partnership property out of which to make the tax.Judgment is prayed against the individuals composing the firm for the amount of the tax.An affidavit for attachment was filed, and lands of the defendant Richards were attached.The grounds of attachment were that the firm had converted and removed all its copartnership property into money, and out of the county, for the purpose of placing it beyond the reach of the plaintiff; had absconded with intent to defraud the plaintiff; and that each and all of the defendants were nonresidents of the state of Nebraska.No service of summons was had, except upon Richards.The proceedings in the case were somewhat complicated, and suggest a number of questions relating to practice; but the conclusion reached upon the principal question involved avoids the necessity of detailing the proceedings and of deciding other questions.To the petition there was finally filed an answer in the nature of a plea in abatement.This answer alleged that the defendant had not resided in York county since 1887; that York county was not his place of abode, or adopted residence; that the tax claim set out in the petition had never been forwarded to the county treasurer of York county, nor to any tax collector of York county; and that the action had never been authorized by the county treasurer nor any tax collector of York county.These allegations were all admitted by the reply.The answer further averred that the plaintiff had no legal capacity to sue; that the court had no jurisdiction of the subject-matter of the action, and there was a defect of partiesdefendant.These allegations were denied, but they are all conclusions of law.The case was tried upon the pleadings, without any evidence, and judgment rendered for the plaintiff, from which the defendant Richards prosecuted error.

The action is one aided by attachment by the commissioners of Clay county in the district court of York county to collect personal taxes levied in Clay county against one who is a nonresident of the state.Will such an action lie?Judge Cooley, in his work on Taxation (2d Ed. p. 15), stated that in general the conclusion has been reached by the courts that “when the statute undertakes to provide remedies, and those given do not embrace an action at law, a common-law action for the recovery of the tax as a debt will not lie.”Numerous authorities are cited in support of that doctrine.Similar language in the first edition of Cooley on Taxation was cited with approval by this court in Nebraska City v. Gas Co., 9 Neb. 339, 2 N. W. 870, where it was held, after a review of the authorities, that in a suit against a city to recover for gas furnished it taxes due the city from the gas company could not be set off, and this for the reason that the method provided by statute for the enforcement and collection of taxes is exclusive.In Millett v. Early, 16 Neb. 266, 20 N. W. 352, it was held that, where the person bound to pay the taxes had died, a claim therefor was properly filed against his estate; but the doctrine of Nebraska City v. Gas Co. was expressly adhered to, and the decision of the court was upon the ground that the filing of a claim against an estate is not an action; the court saying: “While such taxes are not a debt in the ordinary meaning of the word, they do constitute an obligation imposed by law, for which the estate is liable.”The law is further announced in Cooley on Taxation (page 435) as follows: “Sometimes the right to bring suit is expressly given, and, where it is, the statute must be closely followed, and any conditions which are named must be observed.”How strictly it is necessary, in the collection of taxes, to follow the method prescribed by statute, may be seen by a consideration of any of the cases upon the subject.We will, however, refer particularly...