Adams County v. B. & M. R. R.

1. Pleading: PRACTICE IN EQUITY: AMENDMENT AFTER REMAND. After a reversal in an equitable action which is remanded for further proceedings not inconsistent ■with, the opinion of the court, the unsuccessful party may file an amended or additional pleading, upon such a showing of newly discovered evidence as would entitle a party to a new trial in an action at law. 2. -: estoppel: taxation. Where, in an action by a county.to quiet title to certain lands, it was answered that the county had received taxes upon the same, an amendment to the effect that the taxes had been received by inadvertence was the introduction of new matter proper to be shown.

Appeal from, Adams District Court- The plaintiff, Adams county, claiming to be tbe owner of certain lands in said county, over which the defendant was exercising acts of ownership under a claim of title, brought this suit in equity to' quiet its title to said land'.' The' defendant denied the plaintiff’s title, and by way of cross-petition averred that it was the owner of said land, and that the plaintiff was estopped from asserting any title thereto because the plaintiff assessed the said land to the defendant, and received from the defendant the taxes thereon. The plaintiff denied the assessment and receipt of taxes. The District Court rendered a decree for the plaintiff, ánd the defendant appealed. This court reversed the decision of the District Court on the ground that it appeared that the plaintiff had assessed the land to the defendant, and received from it the taxes, and was thereby estopped from asserting title to the same. No decree, however, was entered in this court, but the case was remanded to the District Court for further proceedings not inconsistent with the opinion filed therein. During the vacation, the defendant filed a motion for a decree that the title to the land be quieted in it as prayed in the cross-petition. Immediately afterward, the plaintiff filed a notice, with proof of service on the defendant, that the “plaintiff would, on the first day of the next ensuing term, file an amended replication to the defendant’s cross-bill.” On the first day of the next term the plaintiff filed what it denominates an “Amendment to replication of plaintiff to amended answer and cross-bill of defendant,” in' which it is averred, among other things, in substance, that the board of supervisors of said Adams county, at the time of the alleged payment of taxes to plaintiff by defendant on the land in question, were ignorant of the fact that either the local assessor or county clerk had placed any such lands on the tax list, or suffered them to be placed there; that they never did at any time order them taxed; and that in receipt of money for taxes on railroad lands, it was understood and believed that all lands upon which money was so received were lands belonging to the railroad land grant of May 15, 1856, and that any entry of taxation or assessment of the lands in question was made through mistake and inadvertency. It is further averred that the “said matter of defense was unknown to the plaintiff or its attorney at t-lie time of the filing of the former replication, and was wholly unknown and undiscovered until the month of December, 1874; that plaintiff’s attorney made due inquiry of the county treasurer and examined the record and inquired of the ministerial officer of the facts, but by reason of the change of form of the county government, and change of county officers, the defenses herein stated could not with ordinary diligence be discovered until December, 1874.” To the said pleading was attached an affidavit in the following words: “ State of Iowa, 1 “ Adams County. [ “Joseph S. Morten, duly sworn, on oath says that he is chairman of the board of supervisors of Adams county, and that he is acquainted with a part of the facts stated in the above replication; that he has heard the same fully read over, and that he verily believes the same to be true. “Joseph S. Morten.” This affidavit was duly subscribed and sworn to. The plaintiff offered to file in support of the amended replication, and as an addition and amendment thereto, the affidavit of W. S. McDuffee, who was the treasurer of Adams county in 1868, 1869 and 1870; the affidavit of Frank M. Davis, the attorney of the county in this suit; the affidavit of "Wesley Homan, the treasurer of the county, and the affidavit of H. C. Ankény, a member of the board of supervisors in 1869, which affidavits tended to show the truth of the allegations made in the amended replication. The court refused to allow the affidavits to be filed. The defendant then filed a motion to strike the amended replication from the files, which motion was sustained ; and the court then entered a decree for the defendant on its cross-bill. From the decision of the court striking the amended replication from the files, and from the decree, the plaintiff appeals.