Conley v. Chedic

By the Court, Lewis, O. J.: That the evidence does not sustain the verdict and special findings of the jury in this case is a point which cannot be considered, for the reason that no motion for new trial was made in the court below. This has been so frequently decided by this court that it is now unnecessary to discuss it. We will notice the questions which are properly raised upon the record in the order in which they are presented by counsel: and first, that the court erred in denying plaintiff’s motion to enter the default of the defendant and render judgment thereon. I. It is a sufficient answer to this point that there is no showing in the record that a default existed, and it certainly cannot be presumed as against the action of the court below. But independent of this, if the defendant,, was in default, it was a matter much in the discretion of the judge below to allow the filing of an answer after the time prescribed by statute, especially as no default had been entered, and there was no showing that- the failure to plead had occasioned any delay or injury to the opposite party. II. The court did not err in refusing a change of venue. It is no ground for such change that the people of the county where the action is to be tried are generally interested in the question involved. It is quite manifest from subdivision fifth of Section 164 of the Practice Act, that such interest does not amount to a disqualification. But, independent of the statute, it is always so held. III. The motion for judgment on the pleadings was also properly denied. All the material facts of the complaint are certainly denied by the answer. The question at issue between the parties was, whether the plaintiff’s property belonged in the county of Douglas, so that it might be taxed there at the time the assessment was made by the proper officer of that county. The defendant claims that it was not, but that it was simply in transit through that county, and destined for the county of Ormsby, where it was finally brought and assessed by him. All the necessary facts sus [341] taining this conclusion are alleged in the answer, and thus the issue is fairly presented as to whether the property belonged in Douglas County and was legally assessable there. The admission by counsel was simply that the mode of assessment pursued by the assessor of Douglas was regular, not that the property was properly assessable in that county. The motion for judgment on the pleadings was, therefore, properly denied. IV. We do not see that any fact was submitted to the jury which was not in some way in issue between the parties. Indeed, all the issues so submitted bear upon the main question in the case, namely: whether the property in question could properly have been assessed in Douglas County. But, even admitting that irrelevant issues or facts admitted by the pleadings were so submitted; if the plaintiff was not prejudiced thereby he has no substantial ground of complaint. And it is not shown here in what manner he is prejudiced by the irregularity complained of. V. As we cannot look into the evidence, the special verdict of the jury must be accepted as fully supported by it; and the findings of facts clearly show that the property was not assessable in the county of Douglas. The statute requires or authorizes the assessment of all property in the county during a certain time in each year. Now, what property is to be understood as being in the county ? Can it be said that such as is simply passing through it for the purpose of finding a market elsewhere, or is destined for some other county in the state, is property in the county through which it is passing for the purpose of taxation ? Certainly not. To constitute it property for that purpose in any particular county, it must be in such situation as to make it a part of the wealth of that county; it must belong in it; must be incorporated with the other property of the county. Here it is found that the plaintiff was not a resident of the state of Nevada even at the time of the assessment in Douglas County, and that the property was simply in transitu to the town of Empire, in the county of Ormsby. In such case, it was manifestly not property taxable in the former county. In the case of Hays v. The Pacific Mail Steamship Company, 17 How. 597, which was an action growing out of an assessment [342] and taxation of the steamers of the company in California, the vessels being owned and registered in New York, but plying between Panama and San Francisco, it was held that they were not subject to taxation in California, upon the ground that it had no jurisdiction over them for the purpose of taxation, the court sayiug that they were satisfied the state of California had no jurisdiction over these vessels for the purpose of taxation; that they were not properly abiding within its limits so as to become incorporated with the other personal property of the state, they were then but temporarily engaged in lawful trade and commerce, with their situs at the home port where the vessels belonged, and where the owners were liable to be taxed for the capital invested. See also St. Louis v. The Terry Company, 11 Wallace, 423. The rule which would justify the taxation of this property in Douglas County under the facts found by the jury, would authorize the taxation of all property temporarily remaining in a county while being transported through by railroad or some other mode of conveyance to another point. Such is not the law, nor will the statute warrant that construction. Judgment below affirmed.