C. C. Thompson Lumber Co. v. Hynes

Taxation: Seizure of personal property: Replevin in justice's court. Sec. 3732, K, S. (providing that an action of replevin shall not he maintained before a justice of the peace for property “taken by virtue of any warrant for the collection of any tax, in pursuance of any statute of this state does not apply to a case in which the property seized belonged to a person not in privity either with the ■ owner of the property seized or the person erroneously named as owner in the tax list.

APPEAL from the Circuit Court for Ashland, County. A tax assessed in 1890 by the city of Ashland against “ C. C. Thompson & Co.,” upon certain lumber, was duly returned unpaid to the county treasurer of Ashland county, who thereupon issued to the sheriff (the defendant, Ilynes) his warrant for the collection thereof, pursuant to the statute. R. S. sec. 1126. When assessed for taxation, the lumber was the property of “ Thompson Brothers Co.,” an incorporated company. In attempted execution of such warrant, the sheriff levied upon and seized certain other lumber, which belonged to another corporation, known as the “C. C. Thompson Lumber Co.” The latter company brought the action to recover the lumber thus seized by the sheriff. The circuit court directed a verdict for plaintiff, overruled a motion for a new trial, and gave judgment for plaintiff for the recovery of the lumber. Defendant appeals from the judgment. To the point that a mistake in the name will not invalidate the assessment, and a ■ person whose property is liable to assessment for taxes should not be permitted to evade payment of his just proportion of the pub- ” lío burden by any errors, omissions, or irregularities that do not prejudice his rights, he cited State v. Diamond Valley L. S. db I. Co. 25 Pac. Rep. (Nev.), 448; Petrie L. Co. v. Collins, 66 Mich. 64; Michigan Dairy Co. v. McEinlay, 10 id. 574; Blodgett v. Muskegon, 60 id. 580; Hill v. Graham, 72 id. 659; Hastings, Tax. 69. They argued, among other things, that the plaintiff not being the agent of the Thompson Brothers Co. and not having possession, control or charge of the assessed property, replevin was a proper remedy. Power v. Eindschi, 58 Wis. 539; Oobbey, Replevin, sec. 340; Lake Shore & M. S. P. Co. v. Poach, 80 N. T. 339; StocJcwell v. Vietch, 15 Abb. Pr. 412; Thompson v. Button, 14 Johns. 84; Clark v. Skinner, 20 id. 465; Judd v. Fox, 9 Cow. 259.