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O'fallon Development Co., Inc. v. Ring

OPINION FILED MARCH 29, 1967.

O'FALLON DEVELOPMENT CO., INC., APPELLEE,

v.

DANIEL F. RING, COUNTY TREASURER, ET AL., APPELLANTS.



APPEAL from the Circuit Court of St. Clair County; the Hon. QUINTEN SPIVEY, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

On February 17, 1966, the circuit court of St. Clair County "ordered, adjudged and decreed" that the assessed valuation of a shopping center owned by the plaintiff, O'Fallon Development Co., Inc., "is hereby set and determined for real estate tax purposes at a sum of $194,234 resulting in a tax due and payable for the year 1963 in the sum of $8,095.67." The judgment also directed that upon the payment of that sum the county treasurer expunge from his books and records any penalties and interest due on the 1963 taxes, and that "the tax sale held on these 1963 taxes, after the filing of this suit be and the same is hereby set aside and declared to be null and void and of no force and effect." The defendants, who are the county treasurer, the county clerk and the members of the board of review of St. Clair County, have appealed directly to this court. The revenue is involved.

The amended complaint, upon which this order was based, identified the defendants, alleged the plaintiff's ownership of the property in question and that the plaintiff had been notified of an initial assessment for real-estate tax purposes in the sum of $479,348. It also alleged that the plaintiff "by and through its attorneys followed proper procedures" which resulted in hearings held before the Board of Assessors, and that on September 18, 1963, and again on September 30, 1963, the Board of Assessors determined "that the state equalized assessed valuation for this property should be $194,234." The amended complaint further alleged:

"10. That prior to this time an agreement had been reached by the Board of Assessors and the Board of Review that insofar as initial real estate tax assessments were concerned the Board of Review would concur in the opinion of the Board of Assessors in regard to these assessments.

"11. That in addition on Thursday, June 18, 1964, plaintiff by and through its attorneys appeared at a hearing at the Board of Review and advised of the previous action taken in regard to this assessment by the Board of Assessors of St. Clair County, and was advised by Russell Wright, Chairman of the Board of Review, at that time that the Board of Review would check on the action taken by the Board of Assessors and would concur in that action.

"12. That subsequently thereto, the minutes of the meetings of September 18, 1963 and September 30, 1963, were not properly transcribed by the office of the Board of Assessors to the tax books so that the proper entry was never made on the collector's books of O'Fallon Township.

"13. That subsequently thereto a 1963 real estate tax bill was issued by Howard E. Davison, Tax Collector, O'Fallon Township to the plaintiff showing an assessed valuation for tax purposes of $479,348.00, and a tax due of $19,979.24.

"14. That subsequent thereto, plaintiff by and through its attorneys, transmitted this bill to the attention of the Board of Assessors at which time it was agreed upon by the Board of Assessors that a certificate of error be issued correcting this tax bill to comply with the decision of the Board of Assessors made on September 18, 1963 and September 30, 1963.

"15. That subsequent thereto a Certificate of Error was duly prepared, issued and signed by the requisite number of members of the Board of Assessors.

"16. That subsequent thereto this Certificate of Error was transmitted to the office of the Board of Review after which time plaintiff, by and through its attorneys, was advised by Russell Wright, a member of the Board of Review, that the Board of Review refused to execute such Certificate of Error.

"17. That because of the refusal of the Board of Review to properly execute this Certificate of Error, the Certificate of Error was never transmitted to the Treasurer's Office and that insofar, as the real estate owned by the plaintiff is concerned, this tax is now shown as delinquent and due and outstanding in the amount of $19,979.24."

The complaint prayed that the court (1) order the members of the board of review to execute the certificate of error; (2) order the county treasurer to expunge from his books any penalties and interest; (3) enjoin the county treasurer from taking any further action for the purpose of collecting the "tax assessment" for the year 1963; (4) find as a matter of law that the proper and legal assessed valuation of the plaintiff's property is $194,234, and determine that the proper amount of tax due and payable for 1963 real-estate taxes will be the sum of $8,095.67; (5) order the county treasurer, after receipt of that amount, to make entries on his books to show that the tax is not delinquent and not a lien upon the property of the plaintiff, and (6) "find as a matter of law that the decision of the Board of Assessors as to the assessed valuation for tax purposes is binding upon the Board of Review."

On July 28, 1965, the defendants moved to dismiss the complaint. Thereafter, on September 3, 1965, the court ordered that "the sale of the property described in the complaint for 1963 taxes is hereby suspended until further order of this Court." On February 17, 1966, the plaintiff filed its amended complaint, the allegations of which have been described, and on the same date the court entered the order that has been described. On March 11 the defendants moved to vacate that order and for leave to answer the amended complaint. These motions were denied on April 27, 1966, and on that date the court denied the motion to dismiss the original complaint. This appeal followed.

The contention of the defendants that the court erred in entering judgment for the plaintiff without affording them on opportunity to answer the original or the amended complaint must be sustained. Like a demurrer, a motion to dismiss admits facts well pleaded; but it admits them only for the purpose of determining whether, as a matter of law, those facts state a claim upon which relief may be granted. The defendants did not elect to stand by their ...


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