Thornburg v. Cardell

McClain, J. i. appealjomt noface. Appellees’ motion to dismiss the appeal on the ground that the appellants, though not co-parties, have improperly attempted to perfect the appeal by a joint notice of appeal, is submitted with the case, ailfi gfiorfifi be first determined. The theory of counsel for appellees seems to be that as three separate pleadings were filed in behalf of the plaintiff, Webster county, and Kossuth county, and separate demurrers were interposed to each of these pleadings, the appellants should have served separate notices of appeal. It is enough to say, in answer to this contention, that but one ruling was made on the throe demurrers, and they were sustained on the same grounds, and the court thereupon rendered a joint judgment against the three appellants for costs. The appeal is from this judgment, and we think there can be no impropriety in the joinder of parties against whom a single judgment is rendered in a notice of appeal from such judgment. Indeed, such seems to be the proper practice, even though the parties appealing have not a common interest, Kaehler v. Halpin, 59 Wis., 40 (17 N. W. Rep. 868); Sharon v. Sharon, 68 Cal., 326 (8 Pac. Rep. 614); Benbow v. Garrard, 139 Ind., 571 (39 N. E. Rep. 162); Donnell v. Shields, 30 N. C. 371; Smith v. Cunningham, 30 N. C. 460; 2 Cyc. 763. It is true that by the provisions of our Code one of several co-parties may ap [316] peal by serving notice on other co-parties, and that such other co-parties, refusing 'to join, cannot after-■wards appeal in their own right. Code, sections 4111, 4112. But there .is nothing in the provisions of our Code, so far as we have been able to discover,- nor in the decisions of this court, rendering improper a joint appeal by all the parties against whom a joint judgment is rendered, regardless of what may be their respective interests as affected by such judgment. The motion to dismiss the appeal is therefore overruled. This case was decided in the lower court prior to any of the decisions under the provisions of the Code of 1897 and amendments thereto, relating to the enforcement of taxes on property concealed or omitted from assessment. The decisions of this court rendered since that time have disposed of all the fundamental questions involved in this appeal. See Galusha v. Wendt, 114 Iowa, 597; Lambe v. McCormick, 116 Iowa, 169; Bell v. Stevens, 116 Iowa, 457; Beresheim v. Arnd, 117 Iowa, 83; Mead’s Estate v. Story County, 119 Iowa, 69; Siberling v. Croper, 119 Iowa, 420. A brief statement of the application of these decisions to the present case, so far as any questions of doubt are involved, is all that is necessary. The points to be considered are: First. From what time should the five-year limitation provided for in Code, section 1374, oh the right of the treasurer to collect taxes on concealed or omitted property, be computed? Second. Can the auditor, under Code, section 1385, and chapter 47, page 31, Acts 28th General Assembly assess concealed or omitted property, without limitation of time ?' 3 assessment pronely by treasurer. The faets in this case bearing upon the first question are that plaintiff’s action was brought in November, 1900, and the treasurer seeks to recover not only taxes omitted on prop-in 1896 and 1897, but also on property omitted in 1895, as to which the assessor should haTe ma(je pqg agSessment prior to the 1st of April (Code, section 1365), and as'to which the board of review should have acted prior to the 1st day of ]\fay (Code, [317] section- 1370), and which should have been included on the tax lists delivered to the treasurer by the auditor on the 31st day of December (Code, section 3187). It is argued that up to the 31st day of December .this omitted property might have been placed upon the tax lists, and therefore that the right of the treasurer to bring action under Code, section 1374, did not accrue until that date, and that the five-year period of limitation did not commence to run until that date. But the language of section 1374 is that the treasurer may bring action “at any time within five years from the date at which such assessment should have been made,” and the omission of the taxpayer which constitutes such fault on his part as to justify the extraordinary remedy provided for by Code, section 1374, is the omission to have his property duly returned by the assessor. Galusha v. Wendt, 114 Iowa, 597, 606. We think, therefore, that the five-year limitation on! the treasurer’s right to act under section 1374 is to be com-1 puted from the completion of the work of the assessor, to-wif,| April 1st. It is not material, in construing this language of the statute, to determine when the treasurer might have first brought suit, but only to determine what is the limitation on his right to bring suit thereby imposed. Our conclusion is that plaintiff’s action was brought too late to entitle him to recover for taxes omitted from assessment in 1895. This point has, indeed, been expressly decided in Siberling v. Croper, 119 Iowa, 420. 3 assessment property by auditor. With reference to the second question aD>ve indicated, to-wit, the right of -the auditor of Webster county to add to the tax lists of 1900 an assessment for omitted property of the defendant from 1888 to 1895, inclusive, aud also IOT like omissions from assessment in 1896 and 1897, it is scarcely necessary to add anything to what has already been said by this court in the case of Mead’s Estate v. Story County, 119 Iowa, 69. It is“ there held that the power of the auditor, under Code, section 1385, and chapter 47,page 31,Acts 28th General Assembly is limited to the correction of the tax lists for the current year, [318] so as to include therein taxes which should have been entered on such lists. The conclusion there stated is that, “save as to a current year, tire duty of assessing and listing omitted property for taxation rests with the county treasurer, and that under the statute the county auditor has no authority to act in such eases.” No doubt, the auditor may act on any given tax list after it has passed into the hands of the treasurer, for that seems to be expressly contemplated by the statutory language. But he can act with reference to any such list only for the purpose of adding thereto taxes on property omitted from assessment for the year represented by such list. It is plain, then, that the county of Webster cannot, by any action of its auditor, have placed on the tax list for the year 1900 any assessment on property omitted from, taxation for prior years, whether those years were within or beyond five years from the time when the auditor attempted to act.