Zimmerman v. Corson County

• Decision Date: 05 July 1917
• Docket Number: 4152
• Citation: 39 S.D. 167,163 N.W. 711
• Parties: DAN ZIMMERMAN, Plaintiff and respondent, v. CORSON COUNTY et al., Respondents.
• Court: South Dakota Supreme Court

39 S.D. 167

163 N.W. 711

DAN ZIMMERMAN, Plaintiff and respondent,

v.

CORSON COUNTY et al., Respondents. South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Levi McGee, Judge #4152--Reversed F. L. Bower, C. F. Sutclife, Robert Pearson Attorneys for Appellants. Porter & Grantham Attorneys for Respondent. Opinion filed July 5, 1917. Rehearing denied August 30, 1917

SMITH, J.

Action in equity praying a judgment and decree canceling an alleged void and invalid assessment of taxes upon personal property, and permanently enjoining the enforcement of taxes based upon such assessment. A demurrer to the complaint was overruled by the trial court, and this ruling is assigned as error.

Respondent upon an order to show cause duly served, obtained from the trial court an order restraining appellants from attempting to enforce the tax during the pendency of the action. Upon the return day appellants moved to quash the order to show cause upon various grounds, which motion was overruled. Error is assigned also upon this ruling. No exception to this order is shown by the record, and such assignment cannot be considered. The demurrer to the complaint having been overruled, and appellants being in default, a judgment was entered against appellants which recites that:

"This matter coming on to be heard upon the motion and application of the plaintiff to declare the defendants in default herein, and for leave to offer testimony and for judgment and decree thereon, the plaintiff appearing by his attorneys, Porter & Grantham, the defendants not appearing, and it appearing to the satisfaction of the court that the notice of motion and application was duly served upon counsel for defendants, that more than 60 days have elapsed from the service of the notice of order overruling the demurrer herein, and the time for appeal therefrom having expired, and no answer or application therefor having been made, ... it is ordered that defendants be, and they are hereby, declared to be in default, and the plaintiff entitled to offer his proofs and to have judgment and decree in conformity with the prayer of his complaint, if warranted by the testimony. The plaintiff having offered his testimony before the court, and it appearing to the satisfaction of the court that the allegations of the complaint are true, the plaintiff is entitled to the relief demanded in the complaint," etc.

And the judgment is that the alleged assessment is illegal, invalid, and void, that the same be canceled from the tax records of the county, and that the treasurer be perpetually enjoined from enforcing the collection of taxes upon such assessment. The appeal is from this judgment. Findings of fact having been waived by default (section 278, Code Civ. Proc.), the only question upon this appeal is the sufficiency of the complaint to sustain the judgment.

As stated by appellant, the questions to be decided are:

"(1) Was the assessment and taxation of the property complained of illegal or done in ann illegal manner?

"(2) Will an injunction lie in a case of this description?

"(3) Does chapter 289 of the Session Laws of the state of South Dakota in and for the year 1915 apply to this case?"

The allegations of the complaint may be sufficiently summarized as follows: That on and prior to the 1st day of May, 19114, the plaintiff was the owner of real and personal property in Corson county; that at the proper time the plaintiff duly listed with the county assessor his real and personal property subject to taxation in said county, and also listed for taxation the personal property of the firm of Field & Zimmerman, a copartnership, composed of plaintiff and one Field; that the personal property belonging to said A. L. Field was duly listed for taxation, and was separately assessed for that year; that the plaintiff has no interest or ownership in the property of said Field, but has an interest in the property of Field & Zimmerman as a partner; that the property of the plaintiff, the property of the firm of Field & Zimmerman, and property of A. L. Field were separately listed and assessed, and duly entered upon the assessor's book, and certified and filed with the county auditor, and thereafter approved and certified by the county board of equalization, and duly approved by the state tax commission; that plaintiff's property assessment valuation as approved and certified by the county board of equalization was $108,749, which was increased by order of the tax commission to the sum of $142,768; that upon such valuation personal taxes were extended against plaintiff in the sum of $2,384.23, and against the firm of Field & Zimmerman in the sum of $841.26; that prior to the 31st day of October, 1914, the whole of said taxes against the property of plaintiff and against the firm of Field & Zimmerman were paid to the county treasurer of said county; also that the tax assessed against the personal property of A. L. Field for the year 1914 was duly paid and receipt therefor issued to the said Field; that on or about the 2d day of November, 1914, and after the assessment, levy, and payment of all of said taxes, the county assessor of Corson county made, upon the original completed and permanent assessment record, and as though it were a part of the original record, an entry as follows:

"8. All other cattle 3 years old and over. No. 2,800. Value, 140,000. Total value of all personal property listed above, 140,000."

That thereafter the county auditor of said county, without authority of law, except the aforesaid entry, extended a pretended tax in due form upon the tax list of Corson county and upon the duplicate thereof, and delivered the...