Cover v. Cook

Moore, J. On October 26, 1964, plaintiff, Linn County Treasurer, filed his petition at law under sections 443.12 and 443.13 of the applicable Codes to recover taxes on omitted property. He alleged defendant during 1956, 1957, 1958 and 1959 owned moneys and credits subject to taxation but not listed therefor, at the direction of the state tax commission plaiutiff made an additional assessment December 27, 1960, for the amount of tax owed by defendant for each year and made demand on him for payment of said amounts on January 6, 1961, and repeated his demand on September 17, 1964. Plaintiff further. alleged defendant failed to pajr within thirty days after demand and asked judgment for the tax unpaid for each year plus interest and fifty percent penalty. Defendant was served with notice of plaintiff’s action on October 27, 1964. On November 13 defendant filed a motion to dismiss the petition because plaintiff failed to commence action within thirty days after the expiration of the five-year period prescribed by Code section 443.12. On submission of defendant’s motion to dismiss the trial court stated it would be sustained primarily because of the holding of Shearer v. Citizens’ Bank, 129 Iowa 564, 105 N.W. 1025. On December 30,1964, the trial court entered a formal order sustaining the motion. Plaintiff elected to stand on his pleadings by not pleading further within seven days and thereby allowed the order to become a final adjudication in the trial court. Rule 86, Rules of Civil Procedure. Plaintiff then appealed. The sole issue presented here is whether plaintiff’s action was commenced within the time prescribed by law. This and two other cases, all brought by the same plaintiff, involving the same issue were argued and submitted to us on the same day. We have had the benefit of well prepared briefs in each case. Simultaneously with the filing of this opinion we are filing our opinion in Cover v. Craemer, 258 Iowa 29, 137 N.W.2d 595, which considers and discusses in detail the statutes involved and [29] the applicable principles of law. We there hold plaintiff’s action was not commenced within proper time. Our holding in Cover v. Craemer, supra, is decisive of this appeal. — Affirmed. All Justices concur.