Harris v. Fremont County

Beck, J.

I. The amount in controversy in this action being less than $100, it' is brought to this court upon a certificate of the circuit judge, stating the questions for decision in the following language: "

“ 2nd. In case where a resident taxpayer of one county is erroneously assessed therein with property belonging to another man residing in another county, where the same is legally assessed and paid, can such first party recover back taxes paid by him on such erroneous assessment, in an ac *640 tion against the county, without appearing first before the township board of equalization to have such assessment corrected?

“ 3rd. Does the purchaser of land, after it has been sold at tax sale for such erroneous tax, have, by redeeming from such sale, the same right of action therefor as his grantor, who failed to go before the township board of equalization to have same corrected?”

II. The case presented by these questions and the pleadings is- that of an erroneous assessment. The tax payer is assessed for property in which he had an interest as a partner, and which was lawfully assessed to the firm in another county. The assessor did not lack.authority to make the assessment, nor did he act in the matter beyond his jurisdiction. He simply erroneously listed property to the partner which was lawfully assessed to the firm in another county. It may be regarded as an over-assessment of property which was not taxable against the person assessed. Buell v. Schaale, 39 Iowa, 293 .

III. In case of an erroneous assessment, the statute provides an exclusive remedy by proceedings before the board of equalization, from which an appeal may be taken. Code, § 831. Macklot v. City of Davenport, 17 Iowa, 379 ; Buell v. Schaale, 39 Id., 293; Meyer v. The County of Dubuque, 43 Id., 592; Nugent v. Bates et al., 51 Id., 77.

IY. The plaintiff, to support his action, relies upon Code, § 870, which provides that “the bear’d of supervisor’s shall direct the treasurer to refund to the taxpayer any tax, or any portion of tax, found to have been erroneously or illegally exacted or paid.” This court has held that, under this provision, an action will lie to recover taxes paid, when there was a want of authoi’ity to levy them or make the assessment. Dickey v. The County of Polk, 58 Iowa, 287 . The section is not applicable to the case under consideration which involves an erroneous assessment made in the exercise of lawful authority. As the tax *641 appeai’ed regular upon the assessment roll and tax books, it was not “erroneously or illegally exacted or paid.”

The circuit court rightly sustained defendant’s demurrer to plaintiff’s petition.

Affirmed.