Nugent v. Bates

50 N.W. 76, 51 Iowa 77

• Court: Supreme Court of Iowa
• Decided: April 26, 1879
• Status: Published

Opinion

Servers, J.

i taxation-: sessmoni. — The appellees do not dispute the proposition that if the appellant was a resident of Chicago he was not taxable in this State. The plaintiff is married, and from 1871 resided with his family in the town of Osceola, in this State, until he claims to have moved to. Chicago in September, 1875, which is not disputed. This latter date is stated in the petition to have been in 1874, but this must be a mistake, as the plaintiff in his affidavit states it was in 1875'.

The family continued to reside at Osceola after September, 1875, there being no change in this respect except that the plaintiff was absent. ' He was in Osceola with his family at least once. This was in December, 1875, and how long he remained, or for what purpose he returned, does not appear.

Affidavits were filed by the plaintiff which, in terms, state that he‘was a resident of Chicago from September, 1875, until after January, 1876. Such affidavits are not entitled to consideration because they state mere legal conclusions. The affidavits in effect merely state what, in their judgment, the law is.

The plaintiff states that he was a resident of Chicago at the time the assessment was made, and that he had been such since September, 1875, and further states: “I had at said time permanently located, as I supposed; had sold out my business in Clarke county, and was doing business in Chicago and no other place; that at the time I was assessed •had all my arrangements made to move my family to Chicago, where I at that time was in business, and had purchased property; but owing to the failure of the bank at Osceola I was unable to carry out the plans. I had to let the trade go, as the bank was my security. ”

“The place where a married man’s family resides is generally to be deemed his domicile. But the presumption'from this circumstance may be controlled by other circumstances; for if it is a place of temporary establishment only for his family, or for transient objects, it will not be deemed his domicile.” If his “family is fixed in one place, and he does business in another, the former is considered the place of his domicile.” Story’s Conflict of Laws, § 46. ■

When a residence is once acquired it is presumed to continue until there is satisfactory evidence of abandonment. In Matter of Nichols, 54 N. Y., 62. The only evidence of the.abandonment of the residence which had been acquired in Osceola is that the plaintiff had gone to Chicago, purchased property, and gone into business with the intention of permanently locating there. But his family continued to reside in Osceola, as they had before the plaintiff went to-Chicago. It is not claimed any preparations had been made-for removal. To all a]3pearances the family was permanently located in Osceola. We are of the opinion, under these circumstances, the plaintiff was a resident of Osceola, and rightly assessed and taxed there to the extent of the personal property owned by him. This view is sustained by Bell v. Pierce, 51 N. Y. 12; Carroll v. Inhabitants of Freetown, 9 Gray, 357; Buckley v. Inhabitants of Williamstown, 3 Gray, 463; Otes v. City of Boston, 12 Cush., 44.

2 _._. • The assessment may have been for too much. If so it was erroneous merely, and not void. Being a resident and liable-to taxation, the plaintiff’s only remedy in such case was to appear before the board of equalization and have the same corrected, and if the board refused to do so appeal therefrom. Macklot v. City of Davenport, 17 Iowa, 379.

The fact that plaintiff had no knowledge of the assessment until after the board-adjourned makes no difference. The law has provided a tribunal, time and place for the correction of erroneous assessments, and this every person is bound, to know, and he must attend before such tribunal or whatever rights he may have will be deemed waived.

There is no reason for continuing the temporary injunction to the hearing. There is not the slightest evidence of fraud, and as to the question of residence we have only considered the undisputed facts and the showing made by the plaintiff.

Affirmed.