The Town of Andrews v. Sellers
| Decision Date | 27 November 1894 |
| Docket Number | 1,536 |
| Parties | THE TOWN OF ANDREWS ET AL. v. SELLERS |
| Court | Indiana Appellate Court |
From the Huntington Circuit Court.
Judgment reversed.
J. B Kenner and U. S. Lesh, for appellants.
J. C Branyan, J. F. France and J. S. Branyan, for appellee.
The appellee brought this action against the appellants to recover the possession of a colt.
The appellants demurred to the amended complaint, the demurrer was overruled and the appellants excepted. This ruling constitutes the first specification of error.
The substance of this pleading is that the appellee is the owner and entitled to the immediate possession of an iron-gray mare colt, two years old, of the value of $ 200; that the appellant McVicker is acting as marshal of the town of Andrews, Indiana, and having in his possession the duplicate for warrants of said town for the collection of taxes for said town, which town claims to be a corporation, and having a charge thereon against appellee for taxes for said corporation, said McVicker did, on the day of , 1891, take possession of said property, and is now threatening to sell and convert said property into money and apply the same on said taxes, and now has said colt advertised for sale on the 8th day of October, 1891.
Appellee says said colt was never within the corporate limits of said town until brought there by appellant's wrongful act, and was not liable for any tax to said corporation, said property always having been on a farm outside of said town, and was never returned for taxation within said corporate limits.
Appellee further says that at the time of the levy of said writ upon said property, he was the owner of other personal property in said corporation more than sufficient to pay all the tax due against him in favor of said corporation and no demand was ever made of him, either for said tax or any part of the same; that appellant McVicker, either with or without the consent of the officers of said corporation, and without appellee's consent, went outside of said corporation and unlawfully and wrongfully seized said colt, and now threatens to dispose of the same, as aforesaid; that McVicker is insolvent and irresponsible, and said corporation disclaims having authorized said seizure and conversion, which leave appellee without remedy, and the appellee may thus be irreparably injured, etc.
This appeal was originally taken to the Supreme Court, but that court, by its order, transferred the case to the docket of this court. The complaint closes with a prayer for an injunction to restrain the appellants from selling said property, etc. The Supreme Court doubtless regarded replevin as the principal action, and the prayer for an injunction as a mere incident to such proceeding, and when thus viewed the jurisdiction is doubtless in this court. At all events the order of transfer settles the question of jurisdiction in favor of this court, and we proceed to determine the issues presented by the record.
It is earnestly contended by appellants' counsel that the complaint is insufficient because it discloses upon its face that the property was taken to satisfy a tax. The statute upon which this action is predicated provides that when personal goods are wrongfully taken or detained from the owner or person claiming the possession thereof, etc., the owner or claimant may bring an action for possession. R. S. 1894, section 1286, (R. S. 1881, section 1266).
It is provided in a subsequent section that when an immediate delivery is claimed the plaintiff must make affidavit showing, amongst other things, that the property has not been taken for a tax, assessment or fine pursuant to a statute, etc. R. S. 1894, section 1287, (R. S. 1881, section 1267).
In either case, whether immediate delivery is claimed or not, the complaint will be sufficient to withstand a demurrer without such affidavit. If the proper affidavit accompany the complaint, the plaintiff, if he also file a proper bond, is entitled to possession at once. If no such affidavit is made, the plaintiff is not entitled to possession, but the action proceeds nevertheless, so that the title to the property, or the ultimate right to the possession thereof, may be determined. In no event does the failure of the complaint to contain the averment that the property was not taken for a tax, etc., render that pleading bad on demurrer. Payne v. June, 92 Ind. 252; Turpie v. Fagg, 124 Ind. 476, 22 N.E. 743.
Replevin is, however, under our statute, a possessory action, and hence if it appear upon the trial that the property was taken for a tax, the plaintiff would not be entitled to judgment. Adams v. Davis, 109 Ind. 10, 9 N.E. 162; Maple v. Vestal, 114 Ind. 325, 16 N.E. 620.
Hence, if the complaint show affirmatively that the property levied upon was taken for a tax, can the action of replevin be maintained? It is true that in the present case immediate delivery is not claimed, but the action is nevertheless one in replevin. If the action can be maintained in any event it will prevent the officer from selling the property to satisfy the tax lien. It is the spirit of the law that the officer shall not be thus handicapped in the discharge of his duty. The rule that goods taken on legal process for a tax can not be retaken from the officer by the writ of replevin, is not confined to this State but prevails in other States. The party claiming to have been wronged by the alleged unlawful seizure is in such cases remitted to his action for trespass or trover, or such other proper action as he may select. Wells Repl., section 224.
Public policy forbids that the taxpayer should thus be allowed to arrest the operation of the law for the speedy collection of taxes, and thereby contribute to the extinction or impairment of the State's credit, and the question of the legality of the tax can not be considered in such a proceeding. McClaughry v. Cratzenberg, 39 Ill. 117.
Cooley Taxation (2d ed.), 818.
If, in this action, the appellee claimed the immediate possession of the property, and it were made to appear, from the complaint or affidavit, that the goods sought to be replevied were seized to satisfy a tax levy, it will not be insisted, we apprehend, that the complaint would be sufficient upon demurrer. To obtain the immediate possession of the chattel, the plaintiff would be bound to show that it was not taken for a tax. The only difference between a case where immediate possession is asked and one where it is not demanded, is that in the latter case the plaintiff is required to show that he was entitled to the possession at the commencement of the action, while in the former he must also state in his affidavit that the property was not taken for a tax. In either case, if the evidence discloses that the property in controversy was so taken, the action will not lie. This position is fully sustained by the decisions of our Supreme Court. Adams v. Davis, supra, and cases cited.
If the complaint itself discloses the taking for a tax, the question is fully presented by the demurrer. It must not be inferred, however, from what has been said, that in no case will the action of replevin lie where the goods in controversy have been distrained for taxes. The rule is not applicable, for instance, to a third person whose property has been taken for a tax for which he is in no way liable, nor to one who was not liable to be assessed for taxation. But if the rule is to be avoided, it must appear that the whole tax is illegal, for the action can only be maintained upon the assumption that the seizure of the goods is without warrant of law. Cooley Taxation (2d ed.), 819.
The averments of the complaint are sufficient, we think, to raise the presumption that the appellee was liable to be assessed for taxation by the town authorities. It must...
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