JOHNSON v. BONAPARTE

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JOHNSON v. BONAPARTE
1926 OK 730
249 P. 380
121 Okla. 188
Case Number: 17159
Decided: 09/21/1926
Supreme Court of Oklahoma

JOHNSON
v.
BONAPARTE, County Treasurer.

Syllabus

¶0 1. Taxation--Procedure for Payment Under Protest--Applicability of Statute.
The method of paying taxes under protest and giving notice and bringing suit to recover the same, as provided by section 9971, Comp. Stat. 1921, does not apply alone to ad valorem taxes but applies to any taxes required to be collected by the county treasurer and otherwise falling within the provision of said act.
2. Same--Action to Recover Drainage Improvement Taxes Paid Under Protest--Sufficiency of Petition.
Record examined; and held, that plaintiff's second amended petition states a cause of action, and the court erred in sustaining a demurrer thereto.

Error from District Court, Oklahoma County; Geo. W. Clark. Judge.

Action by H. A. Johnson against E. B. Bonaparte, County Treasurer of Oklahoma County. From order of court sustaining demurrer of defendant, plaintiff brings error. Reversed and remanded.

H. A. Johnson, for plaintiff in error.
J. K. Wright, County Attorney, and John Howard Payne, Assistant County Attorney, for defendant in error.

PHELPS, J.

¶1 This action was commenced in the district court of Oklahoma county by H. A. Johnson, plaintiff in error, who was plaintiff below, against E. B. Bonaparte, county treasurer of Oklahoma county, to recover taxes paid under protest as provided by section 9971, Comp. Stats. 1921. Demurrer was filed to plaintiff's second amended petition upon the grounds:

"First. There is a misjoinder of parties defendant in said action.

"Second. That the plaintiff's petition does not state facts sufficient to constitute a cause of action."

¶2 The court sustained this demurrer, declined to allow plaintiff to amend, and dismissed the action, to reverse which this appeal is prosecuted.

¶3 The sole question here is whether the trial court committed reversible error in sustaining the demurrer.

¶4 Section 9971, Comp. Stats. 1921, provides that:

"In all cases where the illegality of the tax is alleged to arise by reason of some action from which the laws provide no appeal, the aggrieved person shall pay the full amount of the taxes at the time and in the manner provided by law, and shall give notice to the officer collecting the taxes showing the grounds of complaint, and that suit will be brought against the officer for recovery of them."