Weimer v. Bunbury

Decision Date07 October 1874
Citation30 Mich. 201
CourtMichigan Supreme Court
PartiesJoseph W. Weimer v. Edward Bunbury

Heard July 16, 1874

Error to Berrien Circuit.

Judgment affirmed, with costs.

Edward Bacon and C. I. Walker, for plaintiff in error.

E. M Plimpton and D. Darwin Hughes, for defendant in error.

OPINION

Cooley, J.:

Bunbury sued Joseph W. Weimer and Samuel Hess in trespass for taking and carrying away certain livery stock in his possession, and owned by him. The defendants, under their plea of the general issue, gave notice of the following facts in justification of the alleged trespass:

That in the year 1872, Thomas A. Bunbury was treasurer of the city of Niles; that the state and county taxes apportioned to said city for that year were as follows: three thousand three hundred and five dollars and eighty-seven cents to the first and fourth wards, and four thousand nine hundred and sixty-nine dollars and forty-seven cents to the second and third wards; that on receiving notice of such apportionment, said Thomas A. Bunbury, as principal, with Edward Bunbury and others, as sureties, made, executed and delivered to the defendant, Samuel Hess, then and still county treasurer of the county of Berrien, a bond, conditioned that the said Thomas should duly and faithfully perform the duties of his office as such treasurer, and that said county treasurer delivered to said Thomas receipts for said bond, as required by law; one of which was delivered by him to William J. Edwards, supervisor of said first and fourth wards, and one to Rufus H. Charles, supervisor of said second and third wards; that after the delivery of such receipts to said supervisors, to wit: on the first Monday of December, 1872, they respectively delivered to said Thomas as such city treasurer, a tax roll for their respective supervisor districts, with the said state and county taxes properly extended thereon, with warrants attached thereto, commanding the said city treasurer to collect the said taxes and pay over to the county treasurer, on or before February 1, 1873; that said Thomas did not so collect and pay over, or render to the said county treasurer any statement or account, except to the amount of three thousand four hundred and two dollars and seventy-two cents, leaving four thousand eight hundred and seventy-two dollars and sixty-two cents unpaid and unaccounted for; and the said county treasurer, after demand, etc., issued the following warrant: "State of Michigan, Berrien county, ss.: To the sheriff of said county, greeting: Whereas, default having been made by Thomas A. Bunbury, city treasurer of the city of Niles, in said county, in the payment to the county treasurer of the taxes apportioned to said city of Niles for the year 1872; and whereas, there remains now due, unpaid and unaccounted for, the sum of four thousand eight hundred and seventy-two dollars and sixty-two cents; and whereas, Edward Bunbury, Burton Jarvis, George W. Platt, Joseph C. Larrimore, and Joseph S. Tuttle became sureties on the official bond of the said Thomas A. Bunbury as such treasurer, to Samuel Hess, the county treasurer of said county, and to his successors in office, for the payment of the taxes aforesaid: Now these are, therefore, in the name of the people of the state of Michigan, to command you to levy the said sum of four thousand eight hundred and seventy-two dollars and sixty-two cents, together with your fees for collecting the same, of the goods and chattels, lands and tenements of the said Thomas A. Bunbury, city treasurer as aforesaid, and of the said Edward Bunbury, Burton Jarvis, George W. Platt, Joseph C. Larrimore, and Joseph S. Tuttle, his said sureties, and to pay the same to me, the said county treasurer of said county, and return this warrant to me, within forty days from the date hereof, according to law in such case made and provided. Given under my hand at Berrien, this 10th day of February, 1873. Samuel Hess, county treasurer." Which warrant was duly delivered to Joseph Weimer, who then was, and still is, sheriff of said county, and that by virtue thereof the said sheriff did levy upon the property in question, as the property of said Edward Bunbury.

On the trial, the plaintiff having proved the taking of the property from his possession, the defendants attempted to make out their justification, and for that purpose offered to prove the following several facts:

1. That the supervisors of the city of Niles made out two assessment rolls, as required by statute, for the year 1872;

2. That the board of supervisors equalized the assessment rolls of the county, including the two from the city of Niles, and apportioned the state and county taxes to be raised thereon, as required by law; and that such equalization and apportionment was duly certified, as directed by the statute, to the supervisors and the county treasurer;

3. That the supervisors of the city of Niles notified Thomas A. Bunbury, then the treasurer of said city, of the state and county taxes apportioned to the city of Niles, and this previous to the 15th of November, 1872, as required by law, and that by the 25th of November the treasurer gave bonds, with approved sureties, in double the amount of state and county taxes apportioned to said city, conditioned to perform the duties of his office, and that the plaintiff was one of the sureties upon said bond;

4. That this bond was filed with the county treasurer within the time limited by law, and receipts were given by him therefor, which receipts were delivered to the supervisors of the city of Niles;

5. That the supervisors of said city thereupon delivered to the city treasurer copies of the corrected assessment rolls, with the taxes duly spread thereon, one of which copies had no warrant attached thereto, but the other had a warrant, regular in form, attached thereto, as the law requires;

6. That the city treasurer received these two rolls, and collected large amounts of moneys on each roll, but not the whole of the taxes upon either roll;

7. That the amount of state and county taxes on the roll with the warrant attached was three thousand three hundred and five dollars and eighty-seven cents, and on the roll without the warrant attached was four thousand nine hundred and sixty-nine dollars and forty-seven cents; that on the 3d day of February, 1873, there was paid to the county treasurer, as collected upon the two rolls, one thousand six hundred and forty-six dollars and thirty-nine cents, and on the fourth day of February a further sum of one thousand seven hundred and fifty-six dollars and thirty-three cents;

8. That the city treasurer failed to make return of the taxes collected upon either of said rolls, except as above, by the 1st day of February, 1873, or within a week thereafter, and failed to make a statement as to the taxes paid upon said rolls, or either of them, and of the delinquent taxes thereon, as required by the statute, or to do anything else in relation thereto, and absconded from the state;

9. And that on the 10th day of February, 1873, the county treasurer, the defendant Hess, issued a warrant, under § 1029 of Compiled Laws of 1871, for the sum of four thousand eight hundred and seventy-two dollars and sixty-two cents against the city treasurer and the sureties of his said bond, a copy of which warrant is appended to the notice with the plea in this case, that amount being the balance of the state and county taxes appearing on said rolls and not paid as aforesaid, a part of which balance has been collected and a part not; and that upon this warrant the sheriff, the defendant Weimer, made a levy upon the property in question, advertised and sold the same as required by statute,--this being the trespass charged in the declaration.

To this offer the counsel for the plaintiff objected on the grounds: First, That the statute authorizing the county treasurer to issue such warrants was unconstitutional and void; and second, if the court should hold the statute valid, the facts did not justify the treasurer's warrant, inasmuch as one of the rolls was defective for the want of a supervisor's warrant attached thereto in compliance with the statute.

The circuit judge overruled the first objection, but sustained the second, and the evidence was not received.

The defendants being thus excluded from the justification, the parties respectively gave evidence of the value of the property, and the case was submitted to the jury. The defendants requested the court to instruct the jury:

First, That there is no evidence in the case that the defendant Hess was any party to the alleged trespass, and they should return a verdict of not guilty as to him;

Second, The rule of damages in the case is the cash value of the property at the time and place when it was taken, and not what the plaintiff may estimate it at;

Third, The jury are not to consider, in fixing the damages, any injury which the plaintiff may have suffered by the breaking up of his business.

The first request was complied with; the second and third were refused; the third, probably, because the judge regarded it as covered by an instruction already given by him, that the only question of importance for the jury was the value of the property, and that value the jury would determine from all the evidence in the case bearing on the point. This was given in the words of a request made by the plaintiff, except that the word "cash," which preceded the word "value" in the request, was stricken out by the judge. The jury returned a verdict in favor of Hess and against Weimer.

Although the ruling upon the constitutionality of the statute was in favor of the plaintiff in error, the point is nevertheless in the case on this writ of error, since...

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