Keystone Lumber Co. v. Pederson

67 N.W. 696, 93 Wis. 466, 1896 Wisc. LEXIS 52

• Court: Wisconsin Supreme Court
• Decided: May 23, 1896
• Status: Published

Opinion

MaRshall, J.

Assuming that the order is appealable, if, nevertheless, it clearly appears that plaintiff cannot recover, a stay of proceedings pending the appeal should not be granted. An action to recover possession of personal property will not lie against the town treasurer who has levied upon the same, under a tax warrant valid on its face, for a tax appearing upon his tax roll against the owner of such property. It is prohibited by statute (B. S. sec. 3732), as construed by this court. Power v. Kindschi, 58 Wis. 539. But it is said that the statute only operates to protect the officer, under his distress warrant, during the life of such warrant, and that, as it had expired before this action was commenced, the officer at that time held the property without authority. It is the universal rule that, where a sheriff lawfully seizes property under an execution, he may proceed with due diligence to complete the proceedings thus instituted, by advertising and selling the property after the return day of such execution. Herman, Executions, 327, § 212; Ereeman, Executions, §106; G-wynne, Sheriffs, 424; Crocker, Sheriffs, § 493. Also, sec. 2970, E. S., so provides, but it is a mere declaration of what is the law independent of any statute. Town treasurers, under their warrants, possess substantially the same powers as sheriffs under executions. Virden v. Bowers, 55 Miss. 1, 20; Blain v. Irby, 25 Kan. 499. So expressly held in the last case, where a sale under a tax warrant for the collection of taxes, made several days after the return day, was upheld under the general rule respecting the powers of sheriffs above referred to. To the same effect is 2 Destv, Taxation, 779, under the title “Detention of Property,” and such we hold to be the law.

It follows from the foregoing that plaintiffs are not entitled to the remedy of replevin, against the defendant. In such a case the statute (S. & B. Ann. Stats, sec. 1164) gives a complete and adequate remedy, which should be resorted to. A person circumstanced as plaintiffs were should pay under protest, and thereby recover his property; then test the legality and justice of the tax, in an action to recover back the money. That remedy is provided to fit just such cases, and is exclusive. It is only by taking away the remedy of replevin, and substituting for it an action to recover back the tax after payment under protest, that municipalities can be effectually protected from constant obstructions that would otherwise delay or prevent the collection of public revenues.

By the Court.— The motion for a stay of proceedings in each case, pending the appeal, is denied.