Williams v. Harvey, 6861.

• Decision Date: 30 December 1931
• Docket Number: No. 6861.,6861.
• Parties: WILLIAMS v. HARVEY et al.
• Court: Montana Supreme Court

91 Mont. 168

WILLIAMS
v.
HARVEY et al.

No. 6861.

Supreme Court of Montana.

Dec. 30, 1931.

Appeal from District Court, Judith Basin County; John C. Huntoon, Judge.

Action by Charles F. Williams against Arthur T. Harvey, successor to C. O. Ray, as Treasurer of Judith Basin County, and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

L. A. Foot, Atty. Gen., L. V. Ketter, Asst. Atty. Gen., and H. O. Vralsted, Co. Atty., of Stanford, for appellants.

W. C. Husband, of Harlowton, and Frank Woody, of Helena, for respondent.

ANGSTMAN, J.

This is an appeal from a judgment by default, entered in favor of plaintiff and against the defendants after defendants' general and special demurrer to the amended complaint was overruled.

The determinative question presented is whether the complaint states facts sufficient to constitute a cause of action.

The following facts appear from the amended complaint: Plaintiff owns certain inclosed lands in Judith Basin county customarily used by him a short period each summer on which to feed sheep. He also owns land in Wheatland county on which he maintains his residence. On the first Monday in March, 1927, he owned 1,600 head of sheep, then kept in Wheatland county. The sheep were assessed for the year 1927 by the officers of Wheatland county upon a statement furnished by plaintiff to the assessor listing the sheep in question. The taxes were timely paid by plaintiff in that county. Plaintiff had no personal property in Judith Basin county on the 1st day in March, 1927, but between the 10th of July and the 5th of September of that year he summer-fed his band of sheep on the Judith Basin county lands. At some time after July 10th the assessor of Judith Basin county assessed the sheep at a value of $17,500, but plaintiff received no notice of the assessment until in November, when he received his tax notice.

On November 28th plaintiff through his attorney requested the county treasurer of Judith Basin county to furnish a statement of the amount of the tax on his land in that county and of the amount of taxes on the personalty in order that he might pay the latter under protest. He then offered to pay all of the first installment provided the personal property tax be considered as paid under protest. The county treasurer refused to make the segregation, and notified plaintiff that, if the entire amount of the tax was paid before December 8th, the payment would be considered current and not delinquent. On December 7th plaintiff paid under protest the first half of the taxes on the land and sheep, $149.12 of which was for the tax on the sheep. On December 24th plaintiff filed with the board of county commissioners written application for the refund of this amount. No action having been taken by the board on the application, this suit was instituted within sixty days after the taxes were paid but more than sixty days after November 30, 1927.

Counsel for defendants make no contention that the sheep were properly taxable in Judith Basin county. Their argument is that, in order for a taxpayer to avail himself of the right to pay his taxes under protest and...