Seward v. Rheiner

• Citation: 2 Kan.App. 95,43 P. 423
• Decision Date: 01 December 1895
• Docket Number: 40
• Parties: J. C. SEWARD, as Treasurer of Rice County, Kansas, et al., v. EDWARD RHEINER
• Court: Kansas Court of Appeals

43 P. 423

2 Kan.App. 95

J. C. SEWARD, as Treasurer of Rice County, Kansas, et al., v. EDWARD RHEINER

No. 40

Court of Appeals of Kansas, Southern Department, Western Division

December 1, 1895

Opinion Filed January 17, 1896.

MEMORANDUM.--Error from Rice district court; JOHN N. IVES judge pro tem. Action to enjoin the collection of certain taxes, brought by Edward Rheiner against J. C. Seward, as treasurer of Rice county, Kansas, and others. Judgment for plaintiff. Defendants bring the case to this court. Reversed.

The statement of the case, as made by JOHNSON, P. J., is as follows:

This suit was originally commenced by Edward Rheiner in the district court of Rice county, Kansas, to enjoin the treasurer and county clerk of said county, and the city of Lyons and school district No. 69 of Rice county, Kansas, from collecting certain taxes assessed and levied on certain property belonging to him. Part of the property charged with the tax sought to be enjoined was situated in the original city of Lyons, part in Workman's addition, part in White's addition, and portions in the addition known as Purdyville. The separate lots or parcels of land were charged separately with the different kinds of taxes levied thereon. The particular taxes sought to be enjoined were the taxes levied for city purposes and to pay interest on city bonds sidewalk taxes, and school-district taxes, and the penalties charged upon these different taxes. Some of these taxes are alleged to be illegal for one reason, and others for different reasons. A temporary restraining order was granted by the judge of the district court, at chambers, and after the issues were joined the case was tried before the court by a judge pro tem., without a jury. The principal facts in the case were agreed to between the parties, and the facts agreed to were reduced to writing and signed by the attorneys for each party. At the conclusion of the evidence the defendants below submitted in writing a request to the court to find the facts and conclusions of law separately, so that they could except to the separate findings of fact and conclusions of law. The written request set out 31 questions upon which the court was asked to find the facts. The court took the whole matter under advisement for several weeks, and afterward found certain facts, and made its conclusions of law based upon the facts as found, and rendered judgment enjoining the defendants from the collection of the taxes complained of, and refused to find on the most of the questions submitted. To the refusal to find the facts as requested defendants below duly excepted, made a case, and filed the same in the supreme court for review, which was duly certified to this court by order of the supreme court.

Judgment reversed and case remanded.

Samuel Jones, and J. W. Brinckerhoff, for plaintiffs in error.

No appearance for defendant in error.

JOHNSON P. J. All the Judges concurring.

OPINION

JOHNSON, P. J.:

Edward Rheiner commenced a suit in the district court of Rice county, Kansas, to enjoin the treasurer and county clerk of said county, and the city of Lyons and school district No. 69 of Rice county, Kansas, from collecting certain taxes assessed and levied on certain property of his. Part of the property charged with the taxes sought to be enjoined was situated in the original city of Lyons, part in Workman's addition, part in White' addition, and a part in Purdy's addition, commonly known as Purdyville. The separate lots or parcels of land are charged separately with the several different kinds of taxes thereon. The particular taxes sought to be enjoined consist of city of Lyons general and interest taxes, sidewalk assessments, and school-district taxes, and the penalties on all of these different taxes. Some of these taxes are alleged to be illegal for one reason, and others for different reasons.

On the filing of the petition, duly verified, the judge of the district court, at chambers, granted a temporary restraining order. The action was afterward tried before the court without a jury, John N. Ives presiding as judge pro tem., and the collection of taxes complained of enjoined. The court was requested in writing to made special findings of fact on the issuable facts involved in the case and its conclusions of law separately. The court made findings of fact on part of the questions submitted, and refused to find the facts on other propositions submitted. The defendants below duly excepted to the refusal of the court to find the facts on certain issuable questions. The court overruled the objections of the defendants below, and entered up a judgment on such of the findings as it made and its conclusions therefrom; and the defendants below filed their motion for a new trial, which was overruled, and defendants duly excepted thereto, and made a case for the supreme court, which was duly settled and signed, and plaintiffs in error filed their petition in error with the case-made attached in the supreme court, which was duly certified to this court for review. On the conclusion of the evidence, the defendants below submitted in writing 31 questions of fact to the court, and requested findings thereon. The court took the whole case under advisement for several weeks, and afterward made what are designated as findings of fact, by the court, to part of the questions submitted, and refused to find on any of the other questions requested, and assigned as a reason for not finding on the other propositions that the findings as already made, in the opinion of the court, contained all the facts involved in the issues. The court declined to make findings submitted by the defendants' attorney, except as included in the findings as made by the court. The refusal of the court to find the facts as submitted by the defendants below is the first error complained of in this court.

Section 290 of the code of civil procedure reads:

"Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law."

It is a right that either party to a suit has, where the case is tried by the court without a jury, upon request, to have all or any of the issuable facts involved in the pleadings, and upon which there is any evidence, found separately from the conclusions of law based thereon, so that he may have his exceptions to the findings and conclusions; and a refusal of the court, upon a request made to find all facts submitted which are material, is error, and the facts should be found separately from the conclusions of law, so that the reviewing court may determine whether the judgment based on the facts as found is erroneous or not. It is shown in the evidence that Purdyville, which is now claimed to be a part of the city of Lyons, was originally surveyed, platted, and the plat thereof recorded in the office of the register of deeds of Rice county, as a town, with streets, alleys, public grounds, and divided into lots and blocks. It was claimed that the town was afterward vacated and all the property reverted to the original proprietors; and that the separate parcels or lots of land were thereby again united into one solid body of land and the title all reinvested in the owners of the lots and blocks; and that the attempt of the city of Lyons and the board of county commissioners of Rice county to extend the limits of said city so as to include this territory was unauthorized and void, for the reason that it included more land in the area belonging to one person than could be taken in by ordinance, without the consent of the owner. The regularity of these proceedings and the legality of the action of the officers in their attempt to make Purdyville a part of the city of Lyons were facts; and if the necessary facts existed, and the officers followed the law in their effort to extend the limits of the city, and they were authorized to extend the boundaries of the city and take in this territory, then it became a part of the city and was subject to taxation for city purposes. The findings made by the court in the fourth finding are mixed findings of fact and conclusions of law. The court does not find the fact upon which it bases the following conclusion:

"That blocks 4 and 5 constitute one body of land, and contain about six acres of land, with a vacated street between these two blocks; that vacated street and other lands owned by the plaintiff contained 10 1/2 acres, and, for the purpose of this case, there are no streets, alleys or public grounds contained within or upon said 10 1/2 acres."

This statement is a mere conclusion without the facts, and the whole finding is so indefinite that it is hard to understand from the so-called finding what the court really did find as a fact, and is not a compliance with the requirements of the law, and is prejudicial to the rights of the defendants below.

The defendants, in their written request, ask the court, in propositions Nos. 22 to 29, both inclusive, to find the facts in relation to the plaintiff's residence on blocks 4 and 5 in Purdyville; whether he voted in the city of Lyons after the passage of the ordinance by the city council attempting to take him into the corporate limits; at what election he voted; whether he voted at bond elections in the city; what petitions he signed to the city council representing that he was a citizen and resident of the city; whether he objected to being taken into the city limits, and was...