Taylor v. Robertson

Decision Date14 February 1898
Docket Number877
Citation16 Utah 330,52 P. 1
CourtUtah Supreme Court

Appeal from the Seventh district court, Grand county. Jacob Johnson Judge.

Action by A. A. Taylor against A. M. Robertson. Judgment for plaintiff. Defendant appeals.

Plaintiff commenced this action against the defendant to recover the value of certain sheep, alleged to have been taken and converted by the defendant. Defendant admitted the taking of the sheep, but justified such taking on the ground that he was assessor of Grand county, and that the sheep were duly assessed by him as such assessor while they were grazing in Grand county, on February 18, 1897, and sold by him, as such assessor, for the purpose of paying the tax assessed thereon but not otherwise; that at the time of such assessment and taking as aforesaid the defendant was about to avoid the payment of the taxes and to remove the said sheep without the limits of Grand county, and the state of Utah. Upon the trial it appeared that Taylor resided in Utah county, and that the sheep were taken into Grand county in January, 1897, for grazing purposes. The assessor found the sheep in Grand county on February 18, 1897, in charge of plaintiff's herdsman, Burt Frost. At this time the assessor had been informed that arrangements had been made to take the sheep into another county. Frost, who had charge of the sheep informed the assessor that the sheep belonged to the plaintiff, who resided in Utah county, and that he would pay the taxes. Frost remarked to the assessor, "You got us early this year," and said the sheep had not been assessed before; that they intended to take the sheep onto the Uintah reservation in about a month, if the weather permitted. The assessor testified that he did not know whether the sheep would be moved or not; only knew what he was told; that he understood the sheep would be moved onto the reservation; that he had no information that sheep were to be removed from the state; that he did not understand or have any information that they were going to dispose of the sheep; that he acted in the matter because he believed the owner was not in the habit of paying his taxes. The assessor informed Frost that he would assess the sheep. Frost signed and swore to the statement and ownership of the sheep by Taylor, who resided in Spanish Fork, Utah county. The assessor, on the 18th day of February, 1897, assessed the sheep to the plaintiff. The taxes amounted to $ 97.12. Frost was informed that the tax was due and should be paid or secured at once, and he so wrote to plaintiff. The assessor also wrote to the plaintiff, demanding the payment of the tax, or security for its payment, or he would sell the sheep on the 8th day of March. The plaintiff, by his attorney at Spanish Fork, replied by letter that the sheep were not assessable at all in Grand county; that the owner lived in Utah county, and had paid taxes on the sheep the previous year. Inclosed in this letter to the plaintiff was a certificate of assessment for the sheep in question for the year 1897, showing that they were assessed in Utah county for the year 1897. This certificate was signed by N. Smith deputy assessor for Utah county, and was duly mailed with the letter to the defendant, March 2, 1897, six days before the sale, and the letter was received by the defendant about two days before the sale. The attorney also asked the defendant to inform him by return mail if the proof was not sufficient to show that they did not intend to avoid paying the taxes on the sheep, and, if necessary, he would furnish a bond to pay the taxes, but that, if a sale was attempted, he would replevin the sheep. The plaintiff also wrote to his herder--which letter was shown to the defendant before the sale--that he would not move the sheep until the latter part of April. The tax receipt from the assessor for 1896 was also shown to defendant before the sale. One hundred and fifty-two sheep were sold out of a flock of 3,500, without being separated from the flock. The assessor says he sold the right to go into the flock and take 152 sheep, and that the purchaser agreed to take them in that way.


Rhodes & Williams, for appellant.

J. W. N. Whitecotton, for respondent.

MINER, J. ZANE, C. J., and BARTCH, J., concur.


MINER, J. (after stating the facts):

The above are substantially the facts as we glean them from the transcript. The abstract in this case is very defective, and does not contain material and important testimony given upon the trial. This court has been compelled to glean many of the facts from recitals and testimony contained in a poorly-executed type-written transcript. In many respects testimony as to important facts governing the decision in the case has been left out, or so loosely and imperfectly presented that it has caused the court trouble and annoyance to ascertain what the actual facts are. This doubtless arose through mistake, as similar mistakes have arisen in many other cases, and we call attention to the fact now that such errors may be avoided in the future in the preparation of abstracts. The abstract should contain such parts of the record and testimony, under the rules, as will fairly present the case for review in this court. Anything else renders it more troublesome and injurious than if no abstract were filed. After trial, the court found that when the assessment was made, on the 18th day of February, 1897 the defendant had no cause to believe that the plaintiff was likely to avoid the payment of the taxes on the sheep by disposing of them, or by removal thereof from the state; that defendant's taking was wrongful; and as conclusions of law found that the defendant had no authority in law for assessing said sheep on the 18th day of February, 1897, nor at any time prior to the first day of March, 1897; that no justification was shown, and that the plaintiff was entitled to judgment for the value of the sheep. Chapter 10, entitled "Revenue," approved February 12, 1896, (Sess. Laws 1896, p. 86, § 4), reads as follows: "All real property in this state shall be listed on said blanks and assessed as owned and valued on the first Monday in March at 12 o'clock m., of the year in which the assessment is made. All personal property shall be listed and assessed any time after January 1st of each year and valued as of the date of its assessment." Later, at the same session, the legislature passed the "Revenue Act" found on page 423, Sess. Laws 1896. This act was approved April 5, 1896. Included in such act is section 14, found on page 428, which reads as follows: "The assessor must, before the first Monday in June in each year, ascertain the names of all taxable inhabitants and all property in his county, subject to taxation, except such as is required to be assessed by the state board of equalization, and must assess such property to the person by whom it was owned or claimed, or in whose possession or control it was at 12 o'clock m. of the first Monday of March next preceding: provided, that nothing herein shall be taken to prevent the assessor from assessing any personal property at any time before the first Monday in March in case he shall have cause to believe that the owner thereof is likely to avoid payment of the tax thereon by disposing of the property or by the removal thereof from the state." Chapter 129, Sess. Laws 1896, enacted and approved after chapter 10 was approved, is a revision of...

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