Stephens v. City Council of Marion , 132 Iowa 490 ( 1906 )

Ladd, J.

1. taxation: affirmance. 'In tbe absence of any showing to tbe contrary, the action of tbe trial court in sustaining tbe defendant’s motion, and in entering an affirmance of tbe assessment is presumed to have been without error. To overcome this presumption a clear showing that the judgment was improperly obtained, is required. The allegations of tbe petition are insufficient to meet tbis requirement. It is said in the first paragraph that tbe defendant’s attorney paid the filing fee, caused the case to be docketed without a petition, and without a notice of any kind, and had an order entered affirming the assessment of the board of review. But he was expressly authorized to do so by section 3660 of the Code. Upon failure of the appellant to perfect her appeal by noon of the second day of the term to which the same was returnable, the appellee had the right to procure the case to be docketed and have the assessment affirmed. See Frost v. Board of Review, 114 Iowa, 103; also section 4559, Code. No petition was necessary and notice to the appellant of the motion was not essential for having taken the appeal, she was bound to take notice of all subsequent proceedings authorized by law.

2. Assessments: affirmance on appeal: action to vacate; pleadings. But in addition to the foregoing, it is alleged, that the filing fee was paid to the clerk, first, secretly; and, second, fraudulently; and, third, that no copy of the motion was filed; and, fourth, a written decree was presented to the court to be signed. If the appellee had the right to pay the filing fee, it is immaterial whether this was done secretly or openly. The mere statement that this was done fraudulently was but a legal conclusion. The facts, constituting the fraud, if any, should have been stated. The omission to file a copy of the motion is not ground for the vacation of a judgment. See section 3558 of the Code. The practice of preparing entries for the court to sign and enter of record has been followed in this State too long to require any vindication at this late day. The second and third paragraphs of the petition deal solely with the merits of the appeal. By notice of the case in the fourth paragraph, reference is evidently made to the case in the district court and as previously said none was required to be served on plaintiff of its pendency. Certainly this cannot be construed to refer to the assessment proceedings in the board of review for there was no case until appeal had been taken. When the construction of a pleading assailed by demurrer is doubtful after giving to its language a reasonable intendment the doubt is to be resolved against the pleader. Thompson v. Perkins, 97 Iowa, 607; Lampman v. Bruning, 120 Iowa, 167. No reference is made in the petition to any failure to appeal from the board of review and by no fair inference can it be inferred that notice essential to effect such appeal was intended. See section 1373, Code. Nevertheless, counsel argues that “ the record shows there was no appeal, and no complaint before the board of review.” We presume' he refers to the transcript of the proceedings before the board of review, printed in the abstract, but not made a part of the petition. The demurrer was directed to the contents of the petition and not to records aliunde, to which it contained no reference.

Appellant has discussed the merits somewhat. By conforming to the procedure prescribed by the Code, she might have had these considered. By neglecting to do so, she suffered the appellee to have the assessment of the board of review affirmed on motion without a hearing on the merits, and, in so far as appears from the allegations of her petition, she has no cause of complaint save of her own neglect to file the appeal within the time exacted by the statute. —■Affirmed.