
    McCrillis v. Harrison County.
    1. Former Adjudication: facts constituting: collateral attack. in a former action between these parties, a decree was entered which by its terms includes and is decisive of the question in this case. But defendant claims that it should not be bound by .the decree, because, in so far as it includes the question herein involved, it exceeds the relief asked in the case in which it was rendered: — Held that the claim could not be sustained — the decree being- at most irregular, and not subject to attack in a collateral proceeding.
    
      Appeal from Harrison District Oov/rt.
    
    Wednesday, June 4.
    Action to recover certain money paid by the plaintiff to the defendant because of the levy of a certain ditch-tax, which was paid under protest, and to prevent a sale of the plaintiff’s property. There was a judgment for the plaintiff, and the defendant appeals.
    
      J. W. Barnhart, for appellant.
    
      L. B. Bolter ds /Sons, for appellee.
   Seevers, J.

In 1874, the defendant caused to be constructed the “ Stewart & Bryant Ditch,” and levied taxes on the property of the plaintiff and, others to pay for the same. Afterwards the plaintiff and others commenced an action to enjoin the collection of the taxes so levied; the relief asked in said action being that a “writ of injunction issue restraining defendants and their successors in office from collecting said ditch-tax.” It was found by the court in said action that the plaintiffs were entitled to the relief asked in the petition; and a decree was entered enjoining the collection of “any tax now on the (county) treasurer’s books, or which may be hereafter entered therein, known as a ditch-tax, for the purpose of paying for the construction of a ditch known as the Stewart & Bryant Ditch.”

There was ah appeal from said decree to this court, and the judgment of the court below was affirmed. Brandirff et al. v. Harrison County, 50 Iowa, 164. It is conceded, as we understand, by counsel for the appellant that, if the collection of the tax in question was enjoined by the decree in Brandirff v. Harrison County, this amounts to an adjudication of the question sought to be litigated in this case. But he contends that the decree in that case, properly construed, does not amount to such adjudication; and it is insisted that no such relief was asked in that case, and that no greater relief could be given than was asked in the petition. As sustaining this proposition, Cooper v. Frederick, 4 G. Greene, 403; Blake v. Blake, 13 Iowa, 40; and Massie v. Wilson, 16, Id., 390, are cited.

These cases are clearly distinguishable, because the decree was attacked in a direct proceeding on appeal; but this is a collateral attack, and a different rule prevails. The decree, in clear and express terms, enjoins the collection of any future tax which may be levied for the purpose of paying for the construction of the ditch. This clearly amounts to an adjudication that the defendant could not levy any tax at any time for such purpose. If the court had jurisdiction of the parties and subject matter, the defendant was estopped by judgment from levying the tax in question. It is not claimed that the court did not have jurisdiction. Conceding all that is claimed by the appellant, the decree is erroneous only, and it should have been coi’rected on appeal, or some other dix’ect proceeding. Instead of this being done, the decree was affirmed by this court. It thereupon i’emains in full foi’ce and effect. "We do not detennine whether greater relief was granted than was asked or not, and content ourselves with saying that this question was not detennined in the Branding case by this court.

Affirmed.  