State ex rel. Kenosha Office Bldg. Co. v. Herrmann

• Decision Date: 06 June 1944
• Citation: 14 N.W.2d 910,245 Wis. 253
• Parties: STATE ex rel. KENOSHA OFFICE BLDG. CO. v. HERRMANN, Acting City Clerk.
• Court: Wisconsin Supreme Court

245 Wis. 253

14 N.W.2d 910

STATE ex rel. KENOSHA OFFICE BLDG. CO.

v.HERRMANN, Acting City Clerk.

Supreme Court of Wisconsin.

June 6, 1944.

Appeal from a judgment of the Circuit Court of Kenosha County; Henry P. Hudjes, Judge.

On motion for rehearing.

Motion denied.

For original opinion, see 245 Wis. 253, 14 N.W.2d 157.-[By Editorial Staff.]

Robert V. Baker, Jr., of Kenosha, for appellant.

Frank J. Shannon, of Kenosha, and J. E. Porter, of Milwaukee, for respondent.

FOWLER, Justice.

There is a motion for rehearing by the property owner asking the court to change its mandate to affirm the judgment of the court below. That judgment set aside an assessment on certiorari of proceedings before the board of review to reduce the assessment and fixed the amount of the assessment. The motion brings up for review our ruling that the circuit court on certiorari of such proceedings can not ‘make an assessment of property, or * * * order an assessment to be entered on the assessment or tax roll at any fixed sum. The sole function of the trial court is to set aside the assessment if (when) it finds upon the undisputed evidence before the Board that [the assessment] has not been fixed upon the statutory basis.’ 245 Wis. 253, 14 N.W.2d 157, 158.

Movant's counsel first urge that as the point was not raised in the court below this court could not consider it upon appeal. This contention is quite positively ruled against them in Cappon v. O'Day, 165 Wis. 486, 491, 162 N.W. 655, 1 A.L.R. 1657. We see no reason to repeat or add to what is there said. The point here raised was distinctly suggested by members of the court on the oral argument, and it might more appropriately have been presented by supplemental brief than by motion for review if counsel intended to rely upon it. However we will here try to treat the point adequately.

Counsel base their contention on three decisions of this court: Milwaukee Iron Co. v. Schubel, 29 Wis. 444, 9 Am.Rep. 591;State ex rel. Northwestern Mutual Life Ins. Co. v. Weiher, 177 Wis. 445, 188 N.W. 598, and State ex rel. Oshkosh Country Club v. Petrick, 172 Wis. 82, 178 N.W. 251.

The insurance company case is referred to in the opinion hereinbefore filed. Instead of our saying in our opinion that it was stipulated in that case that ‘this court fix the amount of the assessment’ it would have been more exact to say, as appears from the quotation at the commencement of the opinion in that case, that it was agreed by the parties that if the rule for assessment of property contended for by the company was correct, the valuation fixed by the trial court was correct, and that if the rule of valuation adopted by the assessor and board of review was in accord with the statute, then the assessment should remain as fixed by the board. A judgment of the circuit court that determined the amount of the assessment was affirmed.

In the Petrick case the property was assessed by the assessor at $30,000. The board of review reduced the assessment to $27,500. The opinion in the case states that there was no evidence to sustain that valuation. The property owner had consented to an assessment of $25,000 and produced evidence of witnesses as to its valuation. Whether evidence was produced by the defendant does not appear from the opinion, but it appears from the case and briefs that the evidence produced by the property owner was uncontradicted. The court found as fact that the value of the property was $25,000 and entered judgment that ‘the assessment roll be amended’ to conform to that finding. This court affirmed that judgment.

The affirmances of this court in two of the cases relied upon by the movant are sustainable on the theory that the evidence was not in dispute and definitely fixed the assessment of the property involved at the amount determined by the court; and that in the other, the Petrick case, is sustainable on the theory that the evidence was not in dispute and definitely established that no higher an assessment could be made than that fixed by the court and that amending the assessment to that amount therefore could not harm the defendant and did not harm the plaintiff because the plaintiff assented to it.

Much is said in the Milwaukee Iron Co. case opinion that seems at first blush to support the...