Henne v. County of Los Angeles

VAN DYKE, J.

The court below sustained defendant’s demurrer to the complaint, and, the plaintiff declining to amend, judgment was entered thereon in favor of defendant, and the question presented on this appeal is as to the sufficiency of the complaint.

Among other things, it is alleged that the plaintiff is the owner of certain property in the city of Los Angeles known as the Henne block, and that for the fiscal year 1888-89 the assessor of Los Angeles county assessed said property for the sum of ninety-six thousand five hundred and thirty dollars. It is also alleged that on the first day of March, 1898, and for more than a year prior thereto, there was, and still is, a mortgage

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against said property executed by the plaintiff to the regents of the University of California for the sum of thirty-five thousand dollars, and that no payment had been made on said mortgage. It is further alleged that no deduction was made or credit given by the said assessor upon said assessment on account of said mortgage for said fiscal year. The plaintiff further avers in his complaint that on the twenty-third day of July, 1898, he made a demand in writing upon the said assessor that he correct said assessment by deducting from the value of the said property assessed to plaintiff and affected by said mortgage the value of said security; that said assessor neglected and refused to make such correction or deduction; that thereafter, on the third day of November, 1898, the said plaintiff filed his verified petition before the board of supervisors of said defendant county requesting said board to correct, or order to be corrected, upon the assessment-roll of said defendant county, the assessment of the plaintiff, by deducting from the value of said property, as assessed to plaintiff and affected by said mortgage, the value of such security, and that said board of supervisors thereafter denied said petition. It is then averred that plaintiff paid the taxes under protest and presented a verified demand in writing to the board of supervisors of Los Angeles county for the sum claimed to have been overpaid, to wit, four hundred and sixty-six dollars and sixty-six and two-thirds cents, and that said board of supervisors rejected said plaintiff’s claim.

There is no averment in the complaint that the assessor failed to make a demand on the plaintiff as a taxpayer for a statement of his property as required by law, nor is there any averment that the plaintiff as a taxpayer made and delivered to the said assessor a statement under oath.