Howard v. City of Los Angeles

WHITE, P. J.

Plaintiff appeals from the judgment dismissing his action after the demurrer to his amended complaint was sustained and he refused to further amend. The object of the action is to recover taxes on certain jewelry for the years 1953 and 1954 paid by appellant to the city of Los Angeles and county of Los Angeles. The facts alleged in the complaint are deemed true and the following is a summary of the pertinent allegations.

The jewelry was purchased by appellant in 1943 while he and his wife were residents of Beverly Hills in Los Angeles County. An action for divorce and other relief was commenced by his wife in April 1951, while both parties were still residents of Los Angeles County. In June of the same year appellant moved to, and became a resident of, Ventura County. In July 1952, his wife appealed from the portion of the interlocutory judgment of divorce which awarded said jewelry to appellant as his sole and separate property, and in August 1952, pursuant to court order staying execution in accordance with section 943 of the Code of Civil Procedure, she delivered all of said jewelry to the clerk of Los Angeles County.

Taxes for the years 1953 and 1954 were assessed to said county clerk and paid by appellant under protest. The District Court of Appeal affirmed the judgment that appellant was the owner of the jewelry.

(Howard

v.

Howard,

128 Cal.App.2d 180 [275 P.2d 88].) The remittitur was issued and

[197]

filed with the clerk of the Superior Court of Los Angeles County on December 20, 1954. Thereafter appellant procured an order to show cause and a further order of court directing delivery of the jewelry to him. On March 4, 1955, all of said jewelry was delivered to him and removed by him to Ventura County. If appellant “had not been prevented from removing said jewelry to the county of his residence and where he maintains his home, namely, said Ventura County, he would, in June, 1951, have moved it to said County of Ventura.”

We have purposely omitted the statements of contentions and conclusions alleged in the complaint as the demurrer does not give to them the status of admitted facts, as urged by appellant.