WOODWARD fl. GOULD.1
(Oi'r/Juit (Jourt, E. D. Mi880wri.
September 24, 1886.)
PLEADING - RULE WHERE THIRD AMENDED PETITION HAil BEEN ADJUDGED mSUFFICmN'l'-REv. ST. Mo. §§ 3538, 3540.
The provision of the Missouri practice act, that where three petitionll filed in 8 case have been adjudged insufficient upon demurrer, or motion to strike out, no further petition shall be filed, held obligatory on federal tribunals in the state, and to apply in a case where the first petitlOn had been held insufficient on 8 motion to make more definite, and the other two on demurrers. Opinion expressed (27 Fed. Rep. 182) in ruling on demurrer to amended petition, repeated.
At Law. Motion to strike out and dismiss. For opinion upon motion to make the original petition more definite, see 27 Fed. Rep. 182. For opinion on demurrer to the amended petition, see 27 Fed. Rep. 338. Krum cf: Jonas, for plaintiff. Bennett Pike, for defendant. TREAT, J., (orally.) In the case of Woodward v. Gould the court has had presented to it two propositions. This is a fourth amended petition. Does it fall within the terms of the practice act of the state, which, under the act of congress, obtains here? The whole of the statute indicates that where there have been motions to strike out, or demurrers, thrice repeated, the party is not permitted to plead further. But it so happens that one of the motions was a motion not in form to strike out,-not in form a demurrer,-but a motion to make more eertain and definite. At a very early day after that act of congress passed, requiring the federal courts to follow the practice acts of the various states so far as may be, Justice MILLER determined, and it has been followed uniformly in this court since, that the act, so far as obligatory on the federal tribunals when certain matters are asked to be stricken out for irrelevancy, cannot subject the federal courts, nor the adverse paTty, to the necessity of making a pleading for the party in fault; but in all such cases the court would at once require the party to state his cause of action, if he had any, properly, to-wit, make the statement of the case certain and definite, and himself eliminate from it all the irrelevant or impertinent matter. Now, technically, there was not a motion to strike out, but a substitute for that motion. Hence the party has experimented on the court at four different times to see if he could state a cause of action recognized by any known proposition of law. We have looked into the fourth amended petition, and find that it does not improve the plaintiff's case in the IAast. It is as specula1 Edited
by Benj. F. Rex, Esq., of the St. Louis bar.
WOODWARD 11. GOULD.
tive a proceeding as one could well conceive. If a great variety of matters had happened consecutively, something else might have happened whereby the plaintiff would have been benefited; but none of them ever did happen. Here was a corporation to be organized. It never was organized. There were expenditures to be made preliminary thereto, and to ascertain whether the parties would orga'nize a and paid by the defenctcorporation. 1'hose expenditures were ant, according to the terms of the petition. Wherein, then, is the plaintiff damnified? He says that if a corporation had been formed, and this supposed valuable information which he had given had been acted upon, and the adverse party in this case had paid large sums of money, etc., he would have been enriched. It so happens, however, for reasons that the court knows nothing about, the whole enterprise collapsed on the preliminary examination. Through whose fault did it collapse? Suppose it collapsed through the fault of the in not doing a great many things. What did the plaintiff do ,1 How is he out of pocket in any respect 1 Not a syllable from the beginning to the end of the petition shows' that he is entitled to a dollar with regard to the matter, except that if these various matters had happened, and various expenditures had been made, or moneys fur· nished by the defendant, he might have been benefited thereby. It falls within the rules, so well established by the supreme court of the United States, and so well known to the profession, that the law takes no cognizance of such a visionary speculative affair. Now, for two reasons,-first, the statutory reason,-this fourth amended petition will be stricken out. The other suggestion is made by the court, which may be considered supplementary thereto, towit: Even if that rule did not obtain, a demurrer would lie to the petition, for it shows no cause of action for which recovery can be had. But the first becomes important in that the court shall not be obliged over and over again to consider these matters. If a party has a cause of action, let him state it. If, through formal or tech. nical defects, something should be omitted, he has three times in which to correct that. If he cannot do it, and finally fails to state a cause of action cognizable in a judicial tribunal, he certainly ought to go out of court. Hence the motion to strike out will be sustained, and the fourth amended petition will be stricken from the record, and the cause dismissed. v.28F.no.14-47
BAJ.. FOUR and others v. CITY OF PORTLAND.
(Oircuit Oourt, D. Oregon. September 20, 1886.)
TAXAT:tON-ACTION TO RECOVER-ILLEGAL TAX-OVERVALUATION 011' PROPERTY.
The defendant, the city of Portland, by its proper officers, deliberately val· ued the mortgages of the plaintiffs, for municipal taxation, at double the value it did all other lands for such purpose, and levied a tax thereon accord· ingly; which was paid by the plaintiffs, under protest, to an officer charged with the duty of collecting the same, on a warrant addressed to him by the defendan,t, having the force and effect of an execution against the property of the _plaintiffs. Held, that the persons charged with the valuation of the 'plaintiffs' property had jurisdiction of the subject, and the proceeding was quasi judicial, and therefore the result reached is so far conclusive that the legality of it cannot be questioned in an action at law to recover back: the one-half of said tax as illegal. l
Action to Recover Money paid Defendant 8S Taxes. EarlO. Bronaugh, for plaintiff. Zera Snow and Albert H. Tanner, for defendant. DEADY, J. This action is brought to recover the sum of $586.80, paid to the defendant on April 9, 1885, as taxes levied on certain mortgages owned by the plaintiffs on real property in Portland. The plaintiffs are British subjects, and the defendant is a municipal cor· poration of the state of Oregon. It is alleged in the complaint that the defendant, in the year 1885, for the purpose of municipal taxation. assessed and valued the plaintiff's mortgages on real property within its limits at $130,400, and levied a tax-thereon of $1,173.69; that in the course of said assessment the defendant valued the real property within its limits, other than mortgages, at "not exceeding one·third of its real and true value," while the mortgages of the plaintiff were valued "at two-thirds of their real or true value;" that on April 9, 1885,' said taxes had become delinquent, and a warrant issued by the defendant for their collection was then in the hands of the chief of police, whose duty it was to execute the same; that said officer threat· ened to levy upon and sell said mortgages unless said taxes were im· mediately paid, whereupon, and in consequence of said threat, the plaintiffs, on April 11, 1885, did, under protest in writing, pay said taxes to said officer, who thereafter paid the same to the defendant; and that no other or greater sum was justly payable to the defend· ant on account of said mortgages, and as taxes thereon, than $586.80; wherefore the plaintiffs are entitled to recover back the sum of $586.80, and interest thereon from the date of payment. The defendant de. murs to the complaint for that it does not state facts sufiicient to con· stitute a cause of action. The defendant is authorized, (Charter, § 37,) within the city, "to assess, levy, and collect taxes," for municipal purposes, on all prop'
lSee note at end of case.