Bell v. Stevens , 116 Iowa 451 ( 1902 )

Weaver, J. —

The petition, filed March 15, 1900, alleges that plaintiff is, and since the first of January preceding has been, the duly qualified and acting treasurer of ■Jackson county; that in the year 1895 one Mott Watson of that county willfully and fraudulently concealed and did not list for taxation certain moneys and credits, to the amount of $86,000; that Watson has since died, and defendants are the administrators of his estate; that the amount of tax which should have been paid upon said property is $3,-487.30, besides interest and penalties; that on the twenty-third day of December, 1899, notice was served on defendants, demanding of them the payment of said taxes and interest, and that defendants refuse to pay the same. Attached to the petition as an- exhibit is a copy of the notice or demand alleged to have been served on the defendants. Defendants’ demurrer to the petition states the following special grounds thereof: (1) That the notice or demand mentioned in the petition is an original notice of the commencement of an action by another party not a party to this suit, and therefore this action is prematurely brought; (2) that more than five years have elapsed since the assessment should have been made for the taxes sought to be recovered, and plaintiff’s right of action is barred; (3) that the statute under which the action is brought was enacted since 1895, and is not retroactive. This demurrer having been sustained generally, we proceed to the consideration of the several questions thereby presented.

1 I. As to the sufficiency of the demand for the payment of the taxes before the áction was brought. Section 1374 of the Code provides: “When property subject to taxation is withheld, overlooked or for any other cause is not listed and assessed the county treasurer shall * * * demand of the person * * * by whom it should have been assessed, or of the administratoi thereof, the amount the property should have been taxed * * * and upon failure to pay such sum within thirty days with accrued interest he shall cause an action to be brought in the name of the treasurer for the use of the proper county.” The notice or demand, a copy of which is made an exhibit to plaintiff’s petition, is in form and substance an’ original notice by IT. M. Tracy, treasurer, plaintiff, directed to the defendants herein, under date of December 25, 1899, informing them that on or before January 5, 1900, said plaintiff would file a petition in the office of the clerk of the district court of Jackson county, claiming of said defendants the sum of $3,481, as justly due from them, by reason of the act of their intestate in fraudulently concealing and withholding from assessment for taxation for the year 1895 moneys and credits to the amount of $86,000, and requiring defendants to appear and defend, otherwise their default would be entered, etc. The notice bears the indorsement of the sheriff certifying personal service made upon defendants December 23, 1899. The point made by the defendants is that this notice is not a,“demand,” within the contemplation of the statute above quoted, because (1) the name “II. M. Tracy, Treasurer,” is not equivalent to “H. M. Tracy, Treasurer of Jackson County, Iowa,” and (2) the writing so served upon the defendants is not a demand for the payment of taxes, but a notice of the commencement of an action to recover judgment. We think these objections cannot prevail. As we have already seen, the statute makes it the duty of the county treasurer to demand of the proper person the amount which should have been taxed against the omitted property, and, if not paid within 30 days, to bring suit therefor, but does not prescribe the form of such demand, or state whether it shall be in writing or otherwise. Its essential purpose is to inform the person against whom it is asserted of the basis of the claim made against him and of the amount thereof, and give him an opportunity to pay without litigation ; and, while it is, doubtless, the better practice to' make such demand by a formal writing, duly served, we do not. feel at liberty to say that a notice or demand of less formal character, which accomplishes that essential purpose, is legally insufficient, because not stated with the most exact precision. It would be the merest affectation to say that when served with this writing the defendants did not instantly know and fully understand that the county treasurer of Jackson. county made a claim that their intestate, Mott Watson, concealed and withheld $86,000 worth of moneys and credits from assessment for the year 1895, and that said officer demanded at their hands, as the administrators of said Watson, the sum of $3,487, in payment of the taxes upon the property thus omitted. Moreover, the fact that H. M. Tracy was treasurer of Jackson county at the date mentioned, and that it was his duty to.demand and collect such taxes, are matters of which the court will take judicial notice. Hertig v. People, 159 Ill. 237 (42 N. E. Rep. 879, 50 Am. St. Rep. 162) ; Ede v. Johnson, 15 Cal. 53; Webb v. Kelsey, 66 Ark. 180 (49 S. W. Rep. 819) ; Stoddard v. Sloan, 65 Iowa, 680; Thompson v. Haskell, 21 Ill. 215 (74 Am. Dec. 98); Alexander v. Burnham, 18 Wis. 199; Fox v. Com., 81 Pa. 511; Sandlin v. Anderson, 76 Ala. 403; Dennison v. Story, 1 Or. 272; Brackett v. People, 115 Ill. 29 (3 N. E. Rep. 723). And facts of which the courts take judicial notice are such as every citizen is presumed to know. Engraving Co. v. Hoke (C. C.) 30 Fed. Rep. 444. Failure of officer to use proper official title does not render proceedings void, and the ¡defect may be cured by. amendment. The defect cannot be taken advantage of in a collateral action. Barber v. Smith, 41 Mich. 138 (1 N. W. Rep. 992); Berrien County Treasurer v. Bunbury, 45 Mich. 79 (7 N. W. Rep. 704) ; Agent of State Prison v. Rikemam, 1 Denio, 279.

The fact that the writing upon which appellant relies as a demand was an original notice in another action for the enforcement of the same claim we do not regard a sufficient reason why we should refuse! to treat it as a demand, within the meaning of the law of the present ease. . It is evident from the record that in December, prior to the commencement of this action, the then treasurer of Jackson county served unon the defendants an original notice of an action against them for the January term of the district court to enforce the recovery of this tax. What became "of that action, whether it was dismissed or withdrawn or tried or is still pending is not expressly disclosed; but from the fact that this action has since been brought upon the same subject-matter, against the same defendants, and there is no plea of former adjudications, we may presume that it has been disposed of in some manner not affecting' the merits.

The service of an original notice instituting an action for a money judgment is a demand of payment in the highest sense of the word. Where, however, the statute makes a preliminary demand essential to the maintenance of such action, the original notice is not enough to allow recovery in that proceeding. The most casual reading of the statutory provision under consideration shows us that an action by the treasurer cannot properly be instituted until 30 days after a demand has been made for payment.. If, however, he does commence such action, and afterwards finds that he cannot establish the preliminary demand essential to his recovery, why may he not treat the action thus prematurely begun as a demand, upon which, at the end of .30 days, he may successfully begin anew? 9 Am. & Eng. Enc. Law (2d Ed.) 212; Nixon v. Long, 33 N. C. 428.

We are aware that remedies provided by statute, out of the ordinary course of procedure, are generally to be construed and followed with strictness; but this rule is no more imperative than that other which requires us to give to the language of the statute, so far as possible within the limits of fair and reasonable construction, that force and meaning which shall promote the purposes of its enactment. Courts will look with care to guard against everything which is liable to operate oppressively upon the citizen and taxpayer, and, on the other hand, they will not indulge in excessive refinement of reasoning, the net result of which is the escape of the property owner from his just' contribution to the support of the state whose protection he enjoys. The elusiveness of moneys and credits, the jugglery by which they so often disappear at the approach of the assessor, and the justice of the requirement that every man shall do his equal share in carrying- the public burdens, demand that the remedies which the law affords shall not be robbed of their effectiveness by narrow and illiberal interpretation.

2 II. The next proposition of the demurrer, that the plaintiff’s right of action is barred by the five-year limb tation, is not urged in argument, and we may regard it as waived. ^ It is evident, however, that, the assessor having by law until April 1, 1895, for the completion of his lists, and this actioli having been begun in March, 1900, is not open to the objection raised.

III. Since the appeal in this case was taken, we have had occasion, in another case, to review the point made by defendant’s demurrer that section 1374 of the Code does not -operate retroactively. Galusha v. Wendt, 114 Iowa, 597. The conclusion we there reached is in harmony with the position taken by the appellant herein. *

The demurrer to the petition should have been overruled. The judgment of the district court is therefore reversed.