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Page Wood, Scott v. (Colo. App.)....

844 Yoe v. Hoffman (Kan. Sup.). Woods, Smith v. (Kan. App.).

660 Yost, Smith v. (Kan. App.). Woodward, Long-Bell Lumber Co. v. (Kan. Young, Ex parte (Or.)... App.)

.1117 Young v. Frazier (Or.)..
Workman, Steele v. (Kan. App.). .. 1117 Young v. Minkler (Colo. App.).
Wright, Wichita Gas, Electric Light & Young v. State (Or.).
Power Co. v. (Kan. App.).

108 Young v. Thomson (Colo. App.). Wyman v. Herard (Okl.).

.1009 Young, Hays v. (Idaho).

Young, Rain v. (Kan. Sup.). Yavapai County v. McCord (Ariz.).

99 Yount, Denning v. (Kan. App.). Yeager v. Clark (Çolo. App.).....

62

Pago 351 379 707 707 622 812 1030 1113

1068 ...1092

REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since tuo publication of the original opinions in previous volumes of this reporter.]

Allen v. City of Portland (Or.) 58 P. 509. McDermont v. Anaheim Union Water Co. (Cal.)

56 P. 779. Baker v. Southern California Ry. Co. (Cal.) 58 McKee Stair-Building Co. v. Martin (Cal.) 58 P. P. 1055.

104. Brauer v. City of Portland (Or.) 58 P. 861. Mall v. City of Portland (Or.) 56 P. 654.

Mayberry v. Alhambra Addition Water Co. (Cal.) Casey v. Leggett (Cal.) 58 P. 264.

58 P. 68.

Mendocino County v. Johnson (Cal.) 58 P. 5. Dingley v. McDonald (Cal.) 56 P. 790.

Meyer v. Haas (Cal.) 58 P. 1012. Gosliner v. Grangers' Bank (Cal.) 56 P. 1029.

O'Brien v. O'Brien (Or.) 58 P. 892. Hilts v. Ladd (Or.) 58 P. 32.

People v. King (Cal.) 58 P. 19. Horton v. Jack (Cal.) 58 P. 1051.

People v. Winters (Cal.) 57 P. 1067.

Santa Cruz Bank of Savings & Loan v. Taylor J. M. Russell Co v. Lilienthal (Or.) 58 P. 890.

(Cal.) 57 P. 987.
London & S. F. Bank v. Parrott (Cal.) 58 P. 164. State v. Magers (Or.) 38 P. 892.

State v. McElvain (Or.) 58 P. 525.
Los Angeles Holiness Band v. Spires (Cal.) 58
P. 1049.

Willis v. Smith (Or.) 58 P. 527.

Wood v. Jordan (Cal.) 57 P. 997. 59 P.

(xv) †

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THE

PACIFIC REPORTER.

VOLUME 59.

(23 Mont. 337)

2. Under Pol. Code, 88 4023-4026, which pro

hibit the restraining the sale of property for nonGRAGE v. PAULSON (UNITED SMELTING & REFINING CO., Garnishee).

payment of any tax, except where the tax is ille

gal or not authorized by law, or where the prop (Supreme Court of Montana. Nov. 29, 1899.) erty is exempt from taxation, the listing of APPEAL UNDERTAKING-AMBIGUITY.

lands to the wrong person is no ground for re

straining the tax sale; since, under Id. 88 3700, A single undertaking to secure two appeals

3916, 4014, it is but an irregularity or informalifrom two separate orders made at different times

ty, which, of itself, does not render the tax "ille after judgment is void for ambiguity, justifying

gal or unauthorized." a dismissal of both appeals.

3. Land should not be relieved of a lien for Appeal from district court, Lewis and Clarke taxes because the owner did not know of the county; S. H. McIntire, Judge.

assessment, and had no opportunity to discharge

the taxes, on account of the property being listAction by Henry Grage against Tony Paul

ed in the name of another. son, defendant, and the United Smelting & 4. The fact that the notice under which a tax Refining Company, garnishee. On motion to sale was threatened was published but three

weeks, whereas the statute requires four weeks, dismiss appeals. Sustained.

does not render the taxes “illegal or unauthorJ. M. Clements and Chas. J. Geier, for ap

ized by law," within Pol. Code, 88 40234026,

so as to authorize the enjoining of the collection pellant. Toole, Bach & Toole, for respondent.

of such tax.

5. The fact that a county treasurer inteuds to PER CURIAM. It appears from the record violate Pol. Code, $8 3922, 3923, by exposing for herein that two appeals have been taken

sale for the delinquent taxes for 1898 part of

lands purchased by the county at the tax sales from two separate orders made after judg

of 1897, and yet upredeemed, does not entitle ment, one entered on April 15, and one on the owner of the equity of redemption to an inJune 10, 1899. It further appears that only junction; since section 4026 provides that the one undertaking, in the sum of $300, is on file remedy before the board of equalization shall

supersede the remedy of injunction and all othwith the clerk of the district court to secure

er remedies which might be invoked to prevent both appeals. A motion is made to dismiss a collection of taxes alleged to be irregularly the appeals on the ground that the undertak

levied or demanded, except in unusual cases,

where the remedy thereby provided is inades ing is void for ambiguity. The motion must

quate. be sustained, upon the authority of Creek v. Waterworks Co., 22 Mont. 327, 56 Pac. 362;

Appeal from district court, Silver Bow counMurphy v. Railway Co., 22 Mont. 577, 57 Pac.

ty; John Lindsay, Judge. 278; Copper Co. v. Hickey, 23 Mont. 58

Action by W. F. Cobban against Thomas Pac. 866. Let the appeals be dismissed.

R. Hinds, treasurer of Silver Bow county, Dismissed.

and said county. From a judgment entered on sustaining a demurrer to the complaint,

defendants appeal. Reversed. (23 Mont. 338)

The plaintiff is the owner of an undivided COBBAN v. HINDS, County Treasurer, et al. interest in certain real estate situate in the (Supreme Court of Montana. Nov. 27, 1899.) county of Silver Bow. The defendant treasTAXATION-SALE FOR NONPAYMENT_INJUNC- urer being about to sell said real estate for TION-BOARD OF EQUALIZATION.

the amount of the taxes due thereon and de 1. Under Laws 1889, p. 219, § 4, which makes it the duty of a taxpayer to furnish the assessor

linquent for the years 1890, 1892, 1893, 1894, a list of his property; and section 5, requiring

1895, 1896, and 1898, the plaintiff brought this the assessor to value each lot separately; and action to enjoin him from selling, or offering Laws 1887, p. 82, 8 22, which provides that any for sale, the property, or any part thereof, person aggrieved by any assessment may apply to the board of equalization for the correction

for delinquent taxes for those years. The thereof,-equity will not enjoin the sale of sepa- complaint charges, in substance, that the asrate lots assessed in gross, for the collection of sessment of the property for 1890 is void bethe taxes thereon, where complainant does not

cause the tracts of land and city lots were show that he attempted to have the irregularity corrected by application to the board, or some

not separately assessed or valued, but were excuse for not doing so.

assessed in gross, together with other lots 59 P.-1

and parcels of land, of which neither the respective assessments were made furnish & plaintiff nor his predecessor in interest was complete answer to the contention. In 1890, the owner; that for each year, beginning section 46 of "An act to provide for the levy with 1890 and ending with 1898, the real of taxes and assessment of property," apestate was assessed to persons other than the proved September 14, 1887, was in effect. It true owners, and that neither the plaintiff provided: "When any lands or town lots are nor his predecessor in interest had notice of offered for sale for any taxes, it shall not be or opportunity to contest the assessment, or necessary to sell the same as the property notice to pay the taxes; that in 1892 the of any person or persons; and no sale of any treasurer of the county sold all of the prop- land or town lot for taxes shall be invalid erty to the county of Silver Bow in satisfac- on account of its having been charged on the tion of the taxes delinquent for the year assessment roll in any other name than that 1891, and that in 1898 the defendant treas- of the rightful owner or charged as unknown; urer sold a portion of the property to the but such land must in other respects be suffcounty of Silver Bow for the delinquent tax- ciently described on the tax roll to identify es of the year 1897, and that the property it, and the taxes for which it is sold be due bas never been redeemed from either sale; and unpaid at the time of such sale." In that at the time of the assessment of 1890 1891 here was passed "An act concerning the statutes of Montana provided that notice revenue," approved March 6th of that year. of the sale by the treasurer for delinquent Section 13 of this act, after providing that taxes should be published once a week for the assessor must assess property to the perfour weeks, the first of which publications son by whom it was owned or claimed, or should be at least four weeks before the day in whose possession or control it was, proappointed for the sale, whereas the notice ceeds to declare that "no mistake in the name under which the treasurer now threatens to of the owner, or supposed owner, of real sell the property is but a three-weeks notice. property, renders the assessment thereof inA demurrer for insufficiency was overruled, valid.” Section 148 of the act is as follows: and, the defendants refusing to plead fur- "When land is sold for taxes correctly imther, a judgment was entered, in accordance posed as the property of a particular person, with the prayer of the complaint, perpetu- no misnomer of the owner, or supposed ownally enjoining the defendant treasurer from er, or other mistake relating to the ownerselling, or attempting to sell, or from offer- ship thereof, affects the sale or renders it ing for sale, the property, or any part there. void or voidable,"-a paraphrase being: of, for the taxes delinquent for any of the When land is sold, for taxes correctly imyears mentioned. The defendants appealposed thereon, as the property of a particufrom the judgment.

lar person (or when land is sold, as the prop

erty of a particular person, for taxes corC. B. Nolan, Atty. Gen., C. P. Connolly,

rectly imposed upon the land), no misnomer and R. L. Clinton, for appellants. J. K. Mac

of the owner, or supposed owner, or other donald, C. D. Tillingbast, Robt. McBride, and

mistake lating to the ownership thereof, F. T. McBride, for respondent.

affects the sale or renders it void or voidable.

And section 197 provides that "no assessPIGOTT, J. (after stating the facts). 1. ment or act relating to assessment or collec The contention of the plaintiff, to the effect tion of taxes is illegal on account of inforthat the assessment for 1890 was void be- mality, nor because the same was not comcause made upon several parcels of land in pleted within the time required by law." gross, and without separate valuation, has These provisions of sections 13, 148, and 197 been considered in the late case of Delough- of the act of 1891 were incorporated into the rey v. Hinds, 23 Mont. -, 58 Pac. 709, and Political Code of 1895, and appear as sections held untenable. The facts pleaded in the 3700, 3916, and 4014. Under these statutes, case at bar are not to be distinguished, upon It is plain that the listing of land in the name principle, from those presented in the De of a person other than the owner is but an loughrey Case, the doctrines whereof we af- frregularity or informality which, of itself, firm and again apply. The plaintiff, and does not avoid the assessment nor render the those under whom he claims, were conclu- tax illegal or unauthorized. The name of the sively charged with knowledge of the time owner of the real property is, for all purand place, appointed by law, when and poses of taxation except perhaps the imposiwhere the board of equalization would meet; tion of a personal liability, comparatively unthey knew that the lands owned by them important. Support for these views is found would be assessed for the year 1890; and no in Landregan v. Peppin, 86 Cal, 122, 24 Pac. excuse is offered for their omission to seek at 859; Haight v. Mayor, etc., 99 N. Y. 280, 1 the hands of the board a correction of the in- N. E. 883; Merrick v. Hutt, 15 Ark. 331; formality or irregularity of which they now Trust Co. v. Weber, 96 III. 346; State v. Mat. complain.

thews, 40 N. J. Law, 268; Bradley v. Bouch2. The plaintiff insists that the assessments ard, 85 Mich. 18, 48 N. W. 208; Hill v. Gra. are void because the lands were listed by ham, 72 Mich. 659, 40 N. W. 779; Stilz v. City the assessor to persons other than the own- of Indianapolis, 81 Ind. 582; Schrodt v. Depers. The several statutes in force when the l uty, 88 Ind. 90; Strauch v. Shoemaker, 1

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