Belier v. Wilson

62 Colo. 553

Opinion

Mr. Justice Allen

delivered the opinion of the court.

The record in this case shows that the plaintiff in error brought a suit in equity to enjoin the defendant in error, County Treasurer, from collecting and receiving an alleged illegal tax. This was the only relief prayed for. To the answer of defendant, plaintiff filed a replication in which was set up and alleged that since the filing of the suit plaintiff had paid to the defendant the tax, the collection of which plaintiff had sought to enjoin. The trial court dismissed the suit upon motion of the defendant, and this dismissal is the foundation for the various assignments of error.

Assuming, hut not deciding, that the complaint stated a cause of action, yet after payment of the tax, as alleged in the replication, the plaintiff was without equity, and could have no relief in such case. The situation thus created left the plaintiff with a claim against the county for a refund of the taxes so paid, if the same were illegal.

The cause was properly dismissed. The judgment is affirmed.

Affirmed.

Decision en banc.

White, C. J., not participating.