Thornburg v. Cardell

• Decision Date: 28 May 1903
• Citation: 95 N.W. 239,123 Iowa 313
• Parties: J. A. THORNBURG, Treasurer of Dallas County, Iowa, Appellant, v. LEANDER E. CARDELL, Guardian of Elias Cadwell, (a person of unsound mind), AND ELIAS CADWELL, Appellees, AND WEBSTER COUNTY, IOWA, J. F. FORD, Auditor, AND J. A. LINQUIST, Treasurer of said County; KOSSUTH COUNTY, IOWA, M. P. WEAVER, Auditor, AND J. H. WARD, Treasurer of said County, Appellants
• Court: Iowa Supreme Court

95 N.W. 239

123 Iowa 313

J. A. THORNBURG, Treasurer of Dallas County, Iowa, Appellant, v. LEANDER E. CARDELL, Guardian of Elias Cadwell, (a person of unsound mind), AND ELIAS CADWELL, Appellees, AND WEBSTER COUNTY, IOWA, J. F. FORD, Auditor, AND J. A. LINQUIST, Treasurer of said County; KOSSUTH COUNTY, IOWA, M. P. WEAVER, Auditor, AND J. H. WARD, Treasurer of said County, Appellants

Supreme Court of Iowa, Des Moines

May 28, 1903

Appeal from Dallas District Court.--HON. J. H. APPLEGATE, Judge.

ACTION brought under Code, section 1374, as amended by Acts 28th General Assembly, page 33, chapter 50, against defendant, as guardian of the estate of Elias Cadwell, an insane person and against Elias Cadwell personally, for whom a guardian ad litem was appointed, to recover taxes on property omitted from taxation for the years 1895, 1896, and 1897. Answer in general denial, and cross-petition against Webster county and Kossuth county, and the respective officers thereof, alleging that they claim the right to collect taxes on the same property for the same years, and asking that such counties and their officers be made parties defendant, and required to submit to the court for determination the question of their right to such taxes; asking, also, that said counties and their officers be restrained from taking steps to enforce the payment of claims on account of such alleged taxes unpaid on said property. Webster county and Kossuth county, and the proper officers of each, having appeared in the action in response to the cross-petition, filed answers and cross-petitions as against Cadwell and his guardian asserting respectively the right to recover certain sums as taxes on property omitted from taxation. Separate demurrers were interposed to plaintiff's petition and the cross-petitions for Webster county and Kossuth county respectively, which demurrers were sustained by the trial court; and, the three parties each standing upon their respective pleadings, judgment was rendered in favor of the original defendants, and jointly against the plaintiff Webster county, and Kossuth county, for costs, from which these parties appeal.--Reversed.

AFFIRMED in part, and REVERSED in part.

A. B. Cummins and E. W. Dingwell for appellant Thornburg.

C. W. Hackler, County Attorney, and Wm. T. Chantland for appellants Webster County and its officers.

Charles Cohenour, County Attorney, and George E. Clarke for appellants Kossuth County and its officers.

Giddings & Winegar and H. G. Giddings, guardian ad litem, for appellees.

MCCLAIN J., DEEMER, C. J.

OPINION

MCCLAIN, J.

Appellees ' motion to dismiss the appeal on the ground that the appellants, though not co-parties, have improperly attempted to perfect the appeal by a joint notice of appeal, is submitted with the case, and should be first determined. The theory of counsel for appellees seems to be that as three separate pleadings were filed in behalf of the plaintiff, Webster county, and Kossuth county, and separate demurrers were interposed to each of these pleadings, the appellants should have served separate notices of appeal. It is enough to say, in answer to this contention, that but one ruling was made on the three demurrers, and they were sustained on the same grounds, and the court thereupon rendered a joint judgment against the three appellants for costs. The appeal is from this judgment, and we think there can be no impropriety in the joinder of parties against whom a single judgment is rendered in a notice of appeal from such judgment. Indeed, such seems to be the proper practice, even though the parties appealing have not a common interest. Kaehler v. Halpin, 59 Wis. 40 (17 N.W. 868); Sharon v. Sharon, 68 Cal. 326 (8 P. 614); Benbow v. Garrard, 139 Ind. 571 (39 N.E. 162); Donnell v. Shields, 30 N.C. 371; Smith v. Cunningham, 30 N.C. 460; 2 Cyc. 763. It is true that by the provisions of our Code one of several co-parties may appeal by serving notice on other co-parties, and that such other co-parties, refusing to join, cannot afterwards appeal in their own right. Code, sections 4111, 4112. But there is nothing in the provisions of our Code, so far as we have been able to discover, nor in the decisions of this court, rendering improper a joint appeal by all the parties against whom a joint judgment is rendered, regardless of what may be their respective interests as affected by such judgment. The motion to dismiss the appeal is therefore overruled.

This case was decided in the lower court prior to any of the decisions under the provisions of the Code of 1897 and amendments thereto, relating to the enforcement of taxes on property concealed or omitted from assessment. The decisions of this court rendered since that time have disposed of all the fundamental questions involved in this appeal. See Galusha v. Wendt, 114 Iowa 597, 87 N.W. 512; Lambe v. McCormick, 116 Iowa 169, 89 N.W. 241; Bell v. Stevens, 116 Iowa 451, 90 N.W. 87; Beresheim v. Arnd, 117 Iowa 83, 90 N.W. 506; Mead's Estate v. Story County, 119 Iowa 69, 93 N.W. 88; Siberling v. Croper, 119 Iowa 420, 93 N.W. 494.

A brief statement of the application of these decisions to the present case, so far as any questions of doubt are involved, is all that is necessary. The points to be considered are: First. From what time should the five-year limitation provided for in Code, section 1374, on the right of the treasurer to collect taxes on concealed or omitted property, be computed? Second. Can the auditor, under Code, section 1385, and chapter 47, page 31, Acts 28th General Assembly assess concealed or omitted property, without limitation of time?

The facts in this case bearing upon the first question are that plaintiff's action was brought in November, 1900, and the treasurer seeks to recover not only taxes omitted on property in 1896 and 1897, but also on property omitted in 1895, as to which the assessor should have made his assessment prior to the 1st of April (Code, section 1365), and as to which the board of review should have acted prior to the 1st day of May (Code, section 1370), and which should have been included on the tax lists delivered to the treasurer by the auditor on the 31st day of December (Code, section 3187). It is argued that up to the 31st day of December this omitted property might have been placed upon the tax lists, and therefore that the right of the treasurer to bring action under Code, section 1374, did not accrue until that date, and that the five-year period of limitation did not commence to run until that date. But the language of section 1374 is that the treasurer may bring action "at any time within five years from the date at which such assessment should have been made," and the omission of the taxpayer which constitutes such fault on his part as to justify the extraordinary remedy provided for by Code, section 1374, is the omission to have his property duly returned by the assessor. Galusha v. Wendt, 114 Iowa 597, 606, 87 N.W. 512. We think, therefore, that the five-year limitation on the treasurer's right to act under section 1374 is to be computed from the completion of the work of the assessor, to-wit, April 1st. It is not material, in construing this language of the statute, to determine when the treasurer might have first brought suit, but only to determine what is the limitation on his right to bring suit thereby imposed. Our conclusion is that plaintiff's action was brought too late to entitle him to recover for taxes omitted from assessment in 1895. This point has, indeed, been expressly decided in Siberling v. Croper, 119 Iowa 420, 93 N.W. 494.

With reference to the second question above indicated, to-wit, the right of the auditor of Webster county to add to the tax lists of 1900 an assessment for omitted property of the defendant from 1888 to 1895, inclusive, and also for like omissions from assessment in 1896 and 1897, it is scarcely necessary to add anything to what has already been said by this court in the case of Mead's Estate v. Story County, 119 Iowa 69, 93 N.W. 88. It is there held that the power of the auditor, under Code, section 1385, and chapter 47, page 31, Acts 28th General Assembly is limited to the correction of the tax lists for the current year, so as to include therein taxes which should have been entered on such lists. The conclusion there stated is that, "save as to a current year, the duty of assessing and listing omitted property for taxation rests with the county treasurer, and that under the statute the county auditor has no authority to act in such cases." No doubt, the auditor may act on any given tax list after it has passed into the hands of the treasurer, for that seems to be expressly contemplated by the statutory language. But he can act with reference to any such list only for the purpose of...