Scott v. Cnty. of Chickasaw
| Decision Date | 17 December 1879 |
| Parties | GEORGE S. SCOTT, APPELLANT, v. THE COUNTY OF CHICKASAW, APPELLEE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Chickasaw district court.
Action to recover for taxes paid by plaintiff and his grantors upon lands which, as he alleges, were not subject to taxation. The case was tried to the court below upon an agreed statement of facts, and judgment rendered for defendant. Plaintiff appeals. The case has been before in this court. See 46 Iowa, 253.Dosh Brothers, for appellant.
H. H. Potter, for appellee.
1. By reference to the opinion in this cause when it was before here (46 Iowa, 253) it will be discovered that a tax title held by plaintiff had been, in a proper action, declared to be void, for the reason that the land was not taxable for the years for which it was sold for taxes--1858, 1859 and 1860--the title thereof being in the United States. Thereupon plaintiff brought this suit to recover from the county, on the ground that the equitable title of the land, when the assessment was made, was held by Jones, the defendant in the first action. We held that the land was not subject to taxation for the years for which it was sold, and the tax title, therefore, was properly adjudged to be void, and that plaintiff ought to recover from the county the taxes paid upon the land, and interest. The judgment of the court below was reversed and the cause was remanded for a new trial.
After the cause had been remanded to the court below upon leave defendant filed an amendment to its answer alleging: First, that the land was patented to Jones in 1867, upon an entry made the same year, and became subject to taxation for 1868 and subsequent years, and that plaintiff cannot recover against the county for taxes paid after the land became taxable; second, that the taxes for the year 1868 and prior years were paid by plaintiff more than five years before the commencement of this action, and recovery therefor is barred by the statute of limitations. No objections were made, or exceptions taken, to the order granting leave to file this amended answer by the plaintiff; his attorney being present when it was made.
At the next term plaintiff moved to strike out the amendment to the answer on the grounds: First, it was filed after the case was decided by the supreme court upon a trial de novo, and the judgment of the district court reversed, and the cause remanded; second, the defense made in the amendment existed at the first trial and was not pleaded by defendant; third, the averments of the amended answers are in conflict with the opinion of the supreme court. This motion was overruled. The first error assigned by plaintiff assails this ruling upon the motion.
2. The plaintiff states in the abstract that the trial in this court on the former appeal was de novo. This is denied by defendant. The statement in the abstract and motion is not correct. The case was, and is, at law, and could not have been tried here de novo. This is clearly shown by the opinion in the former appeal. The judgment of this court reversed the decision of the court below, and remanded the cause for a new trial. After the case was again in the district court amendments to the pleadings were allowable in the furtherance of justice. Code, § 2689; Bibb v. Preston, 3 Iowa, 325. If any valid objection existed to the amendment it should have been made when leave was asked to amend in the court below. By failure to except to the order of the court, objection thereto was waived by plaintiff, and the ruling can not be assailed in this court. This conclusion is based upon familiar rules prevailing here.
3. The amendment is not in conflict with our former decision in this case. We held that, upon the case then presented, the judgment of the court below so wanted the support of the testimony that it could not be sustained. While the decision is not thus expressed, yet it is to this effect. The cause was thereupon remanded for a new trial. We conclude that the court below did not err in refusing to strike defendant's amended answer.
4. Plaintiff insists that the judgment of the court below now under review is so in conflict with the evidence--the agreed statement of facts upon which it was tried--that it cannot be supported. We will proceed to examine this position. It will be remembered that we have stated the land was sold for the delinquent taxes of 1858, 1859 and 1860, and plaintiff claimed title under this sale. It has been determined in the first action, and upon the former appeal in this case, that when the land was assessed and sold it was not taxable, and that Jones' entered the land in 1867, and in the same year received a patent therefor from the government. The land became taxable after Jones' entry, and was subject to taxation for 1868, and subsequent years.
This action was commenced June 26, 1876. We must first inquire whether recovery for the taxes, paid more than five years before the commencement of this action, is barred by the statute of limitations. This inquiry will cover payments made previous to June 26, 1871. The taxes for 1869 and prior years were paid before that date. It may be admitted, for the purpose of the present inquiry, that the defendant was liable to plaintiff upon payment of these taxes, on the ground that they were illegally assessed, the land not being subject to taxation. This is true as to all taxes levied before the entry of the land. It may be conceded as to other taxes, paid prior to June 26, 1871.
We have held that an action to...
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