Robinson v. Ferguson

• Decision Date: 30 January 1903
• Citation: 93 N.W. 350,119 Iowa 325
• Parties: G. S. ROBINSON, Treasurer, Etc., Appellant, v. D. FERGUSON & SON, Appellees
• Court: Iowa Supreme Court

93 N.W. 350

119 Iowa 325

G. S. ROBINSON, Treasurer, Etc., Appellant, v. D. FERGUSON & SON, Appellees

Supreme Court of Iowa, Des Moines

January 30, 1903

Appeal from Pocahontas District Court.--HON. W. B. QUARTON, Judge.

ACTION to recover taxes on property which was withheld, and not listed for taxation. The trial court sustained a demurrer to the petition, and plaintiff appeals.

Reversed.

Wm Hazlett, County Attorney, Healy Bros. & Kelleher and A. N Botsford for appellant.

Prouty Coyle & Prouty for appellees.

OPINION

DEEMER, J.

Galusha v. Wendt, 114 Iowa 597, 87 N.W. 512; Lambe v. McCormick, 116 Iowa 169, 89 N.W. 241; Bell v. Stevens, 116 Iowa 451, 90 N.W. 87; Beresheim v. Arnd, 117 Iowa 83, 90 N.W. 506,--decided after this case was tried in the lower court, settle most of the points in controversy.

Appellees contend, however, that the petition does not show that the omitted property was within the jurisdiction or power of the taxing officer of the county, or state facts showing the omission or nonassessment of the property. A second point made by them is that the right to taxes upon unassessed property prior to the adoption of the Code of 1897 was simply an inchoate and nonenforceable one, and that the repeal of the then existing laws by that Code, without any saving clause, absolved defendants of the duty of paying, and destroyed plaintiff's right to collect.

Of these in their order. The allegations of the petition relating to the first point are: "Count 1. That the plaintiff is the duly elected, qualified, and acting treasurer of Pocahontas county; that as such treasurer he has at a time heretofore been informed and duly apprised, and therefore believes, that the defendant on January 1, 1895, had certain personal property, consisting of moneys and credits, which they willfully and fraudulently failed, neglected, and refused to list and return to the assessor of the town of Rolfe, Pocahontas county, Iowa at which town of Rolfe the said D. Ferguson & Son were residing and doing business as a co-partnership as brokers and merchants, both of whom were at said time actual residents of the said town of Rolfe, and personally engaged in the conduct of said business as aforesaid; that at said time the said defendants had not paid taxes on said property, nor had the same been by the said defendants or either of them listed or reported for taxation, and the plaintiff avers that the said defendants at said time knew that said property was taxable, and, knowing said fact, withheld the said property from assessment; that the said property consisted of cash in bank, and under the immediate control of the defendants, certificates of deposit in bank, notes, mortgages, city warrants, bonds, partnership stock, choses in action, book accounts, due bills, and other similar credits, in the amount of seven thousand dollars; that the tax on said property, if paid according to the rates of taxation for the year 1895, would have amounted to the sum of $ 115.73; that no part of the said sum was paid, and prior to the institution of suit demand was made by this plaintiff for the payment of the said tax, as set forth in the original petition, to which reference is now made; that by reason of the fraudulent withholding of said property, as hereinbefore pleaded, there is due a penalty of fifty per cent. upon the amount of said tax, to be computed upon the amount of said tax and interest thereon." The exact point relied upon here is that the petitioner simply states "his information and belief," and not facts, and that a denial of the petition would have put nothing in issue but the information of the plaintiff and the state of his mind.

The statute under which the action was brought, so far as material, reads as follows: "When property subject to taxation is withheld, overlooked, or for any other cause is not listed and assessed, the treasurer shall, when apprised thereof, at any time within the five years cause an action to be brought in the name of the treasurer for the use of the proper county." Code, section 1374. The petition follows the language of the statute with reference to the plaintiff's knowledge, and is not vulnerable to the attack made upon it, provided it is found that it also charges an actual withholding of the property.

Looking to the petition as a whole, we think it fairly charges that defendants fraudulently withheld their property from assessment at the time stated. The character of the property is described, and the amount of taxes due thereon is definitely stated. Winneshiek Co. v. Allamakee Co. 62 Iowa 558, 17 N.W. 753, is not in point. There was no allegation of "belief" in that case, and from the various papers filed by plaintiff therein the court found that there was no intent to charge a fact, but simply to state the information held by plaintiff. It is quite generally held that a statement of facts on information and belief is sufficient, in the absence of a motion attacking the pleading on this ground. Carpenter v. Smith, 20 Colo. 39 (36 P. 789); Stoutenburg v. Lybrand, 13 Ohio St. 228; Thackara v. Reid, 1 Utah 238. In pleading facts not within the knowledge of the party an averment of belief is sufficient. Radway v. Mather, 5 Sandf. 654. See, also, ...