Bonnin v. Zuehlke

Cassoday, C. J. 1. The statute expressly provides that such action of replevin “shall not be maintained for any property taken by virtue of any warrant for the collection of any tax in pursuance of any statute of this state.” Sec. 3732, Stats. 1898. Such statute has frequently been enforced. Power v. Kindschi, 58 Wis. 539, 17 N. W. 689; Keystone L. Co. v. Pederson, 93 Wis. 466, 469, 67 N. W. 696; Harris v. Snyder, 113 Wis. 457, 89 N. W. 660. The affidavit for the writ of replevin, which constitutes the complaint in this action, expressly states that the property therein described bad not been taken by the defendant for any tax levied by virtue of any law of this state. It is undisputed that the defendant, as treasurer of the town, received the’ tax roll and tax warrant In December, 1902; that the plaintiff was liable thereon for taxes on real estate which be paid, and for $85.13 taxes on personal property; and that the defendant still bad possession of such tax roll and tax warrant at the time the action of re-plevin was commenced; and that the plaintiff bad not at that time paid such taxes, except on the real estate. The statute declares that: “In case any person shall refuse or neglect to pay the tax imposed upon him, the treasurer shall levy the same by distress and sale of any goods and chattels belonging to such person, wherever the same may be found within bis town, city or village.” Sec. 1097, Stats. 1898. [131] Another section of the statute made it the duty of the defendant, for the purpose of collecting such taxes, to “call at least once on the person taxed . . . and demand payment of the taxes charged to him on such roll.” Sec. 1089, Stats. 1898, as amended by sec. 4, ch. 335, Laws of 1899. The answer alleges that on or about March 6, 1903, the defendant, with the tax roll and warrant in his possession, did make due demand upon the plaintiff for the payment of said taxes, and offered to give him a tax receipt upon such payment being made, but that the plaintiff refused to pay such taxes, or any part thereof. "Whether he did make such demand or not was one of the principal issues to be tried. It was not determined by the findings of the trial court; certainly not by the finding that the allegations in the complaint were proven and true, since the complaint was silent on that subject. Nor is the finding that the allegations in the answer were not proven and true of any significance, since it appears from the undisputed evidence that most of such allegations are true. For obvious reasons this court refrains from setting aside specific findings of fact not against the clear preponderance of the evidence. But in the case at bar there is no specific finding as to whether such demand of payment was made. The defendant testified to the effect that on or about March 6, 1903, and while the tax roll and warrant were in his possession, he made demand upon the plaintiff for the payment of the taxes so assessed against him; that he asked him if it was not pretty near time to settle up the. tax business— to get around to collect the taxes; that the plaintiff then asked how much it was ; that he told him that he had the receipt already made out, and that he could look it over; that the plaintiff then took the receipt, and looked it over, and said the assessment was too high, and he did not "want to pay it, and asked him to see the town board and get them to let off some; that he was willing to pay the tax, but not the whole amount stated; that he again called upon the plaintiff March [132] 10, 1903, and demanded the payment of the personal tax against him, then due and unpaid; that he told the plaintiff to pay it under protest, and save trouble; that the plaintiff then asked him if he had seen the board about it, and he told him that he had, but that they would do nothing about it; that the plaintiff then said he would not pay it; that he told him he ought to pay it under protest, and save trouble; that the plaintiff replied that he would not do such a thing; that he then told the plaintiff that he would have to do his duty and levy on his property, and hoped there would be no hard feelings between them; and about an hour after he made the levy. The plaintiff testified to the effect that the defendant did not make any demand for him to pay the tax or that he would seize his property; but he admits that the defendant called on him twice in regard to those taxes; that the first time, after they had talked about the taxes a bit, the defendant handed out a receipt and said that it was about time to look around about taxes; that it had the appearance of a tax receipt, and that was what he took it for; that he understood the defendant was ready to receipt for his taxes if ho had voluntarily paid them, either there or at any other place; that the tax was high, and they talked about it; that the defendant said he knew it was high; that he told the defendant that ho knew the taxes were too high, and that he had a good deal of influence, and ought to see the town board, and have the matter fixed up, and save the town trouble and costs; that on March 10, 1903, the defendant came to him again, and then said: “ ‘I saw those fellows, and they did not want to do anything about it. It is getting late, and I will have to do something about taxes.’ I did not know that he was going to levy, and did not know but what he might. I paid no further attention to it. I told him I was willing to pay a good big share of my tax, but did not feel like paying excessive tax.” The plaintiff knew that the defendant had the tax roll and' ;ax warrant. He had paid to the defendant his real estate tax. [133] lie had twice declined to pay the tax on his personal property, because he regarded it too high. He was expressly informed that the defendant would have to do something about taxes unless they were paid. It is very obvious that the defendant demanded the payment of the tax before making the levy. The use of the word “demand” was not essential. Thus it has been held: “The demand by a collector for the payment of a tax need not be in absolute words. It will be sufficient if the collector intimates that the payment is desired; anything that informs the taxpayer that the collector has a warrant, and desires payment ; and anything that plainly brings home to the taxpayer that the collector is there officially.” Miller v. Davis, 88 Me. 454, 34 Atl. 265. 2. It is claimed that the defendant’s levy on the property was invalid because the defendant did not have with him on his person at the time the tax roll and warrant. It is undisputed that at the time of the levy the tax roll and warrant were in the defendant’s office, and that in making the levy he seized the team, wagon, and harnesses in the street immediately in front of his office. It also appears from a preponderance of the evidence that he informed the person in possession thereof that he so levied upon the property and took the same into his possession for the taxes. He was not called upon to exhibit his tax roll and tax warrant. They were both in his possession and control, and near by, but not on his person. Such tax roll and warrant are liable to be quite bulky and inconvenient to carry on one’s person. We must hold that the mere fact that the defendant did not have them in his hands when he seized the property did not vitiate the levy. The property was taken by virtue of the warrant for the collection of the tax; and, as we have already seen, that of itself precluded the plaintiff from maintaining replevin for the property. Sec. 3732, Stats. 1898. In addition to cases cited above, see Adams v. Davis, 109 Ind. 10, 9 N. E. 162; Maple v. Vestal, 114 Ind. 325, 16 N. E. 620. The reason is obvious. [134] The statute has prescribed a different remedy for the person who deems himself aggrieved by such levy. This is sufficiently pointed out by Mr. Justice Maeshall in Keystone L. Co. v. Pederson, 93 Wis. 466, 469, 61 N. W. 696. In that case it was held that: “One who wishes to test the validity of a tax against him, for the collection of which his property has been seized by the treasurer under a warrant, should pay the tax under protest, and so recover his property, and then bring his action” to recover back the amount paid, under sec. 1164, Stats. 1898. 3. The mere fact that the plaintiff paid the amount of. taxes in question the next day after this action was commenced, and four days after the levy, did not authorize the plaintiff to maintain this action of replevin. Thomas v. Wiesmann, 44 Wis. 339. Nor did such payment deprive the court of jurisdiction. Dr. Shoop Family Medicine Co. v. Schowalter, 120 Wis. 663, 98 N. W. 940. There are no other questions calling- for consideration. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the action.