Hamilton v. City of Dubuque

Seevers, J. I. It is objected by the appellee that the assignment of errors is insufficient. This objection may have been well taken when counsel prepared his argument; but since then, at the term and before the cause was submitted, the appellant had leave to amend the assigment of errors. This has been done, and the objection is not well taken, for the reason the assignment of errors before us is clearly sufficient. , , K™overyBof: ipafVorpora-’ tI0nsII. The sale was in 1864, and the last time the plaintiff paid any money in discharge of taxes subsequently levied was in 1869. In Brown & Sully v. Painter, 44 Iowa, 368, it was held that an action brought for the recovery of taxes paid was barred in five years from the payment. This case has been followed in several cases, and must be regarded as the established rule. In Callanan v. Maclison County, 45 Iowa, 561, the same ruling was made when such defense was relied on by the county. There cannot be any distinction in this respect between a county and a municipal corporation like the defendant. The cause of action is, therefore, fully barred [215] unless it is saved by the ordinance referred to in the petition. III. A careful examination of the petition satisfies us that the right to recover is not based on the ordinance, or rather that it is not based on a “mistake or wrongful act of the treasurer,” and, therefore, the ordinance does not take the case out of the operation of the statute. The allegation is that the sale was made by the wrongful act of the city. It is true the officers of the city, including the treasurer, it will be conceded, represented and declared “that it, the said defendant, had, under the laws of the State of Iowa, full power and authority to sell and convey said property for and on account of the taxes aforesaid levied thereon.” The city could speak only through its officers, and the wrongful act was the act of the corporation, if the power to sell did not exist; that is to say, it is not averred to be the wrongful act of the treasurer. Reversed.