
    Common Pleas Court of Montgomery County.
    Miami Conservancy District v. Israel et al.
    Decided March 3, 1931.
    O. B. Brown, for plaintiff, the Miami Conservancy District.
    
      A. W. Schulman, for defendants Max L. Israel and Gussie Israel.
    
      Calvin L. Crawford, prosecuting attorney, for defendant county treasurer.
   White, J.

This case comes before the court on the motion of the defendants, Max L. Israel and Gussie Israel, to require the plaintiff to make the petition definite and certain in the following respects, to-wit: First, by setting forth the year and the amount of the delinquency for each year separately constituting the claim of $2,806.18; second, to set forth the amount of penalty for each year during which the penalty accrued; third, to set forth how much- delinquent tax and penalty was due on November 15, 1925, when the board of directors authorized its attorney to bring an action on the delinquent assessment.

A reading of the petition discloses that it is a suit at law for a money judgment in the sum of $2,806.18 brought by the plaintiff, Miami Conservancy District, against the defendants, under authority of Section 6828-54 of the General Code of the state of Ohio. A reading of the petition further discloses that the dates of the assessments levied, to-wit: the first day of September, 1917, and the 28th day of September, 1920, are set forth in the petition, as well. as the delinquent amounts due, and the total amount claimed to be due.

It has been held in the case of Robert Cummings, Treas., v. John Fitch et al., as reported in Vol. 1, Weekly Law Bulletin, p. 77, that a petition by a county treasurer for unpaid taxes and assessments, in an action under the act of February 18, 1875, need not allege what those taxes and assessments were for. It is sufficient if the petition contain no more than is required by the Act.. This was a decision by the District Court of Lucas county, Ohio, the court stating on the third page of the decision as follows:

“We think that this petition complies strictly with all the requirements of this act, and to require the plaintiff to state more specifically than he has done any special matter relating thereto would be to do what we have no right to do, the Legislature having declared that it will be sufficient that he should not be required to say anything more than exactly what the plaintiff has said in this case.”

We find on consulting the section of the General Code under which this action was brought that—

“The ‘delinquent conservancy assessment book’ of the district should be prima facie evidence in all courts of all matters therein contained.”

And we also find that

“The suit shall be brought in the corporate name of the district by its attorney against the land or lands, property or properties on which such tax or assessment has not been made.”

We find later on in the same section of the General Code that—

“The pleadings, process proceedings, practice and sales in cases arising under this act shall, except as herein provided, be the same as in an action for the enforcement of the state’s lien for delinquent general taxes upon real estate.”

We find also, as reported in the 45 O. S., at page 632, a copy of a petition brought by the Treasurer of Harrison County, against the defendant S. B. Shotwell, in which the plaintiff claims as follows:

“That said taxes are due and unpaid and said defendant is indebted to the said Harrison, as treasurer of the said county, in the sum of §2,324.89, the sum charged against the defendant as tax as aforesaid. Wherefore he asks judgment for the amount due.”

This petition was held sufficient and permitted the treasurer to recover upon it. Shotwell v. Moore, 45 Ohio St., 632.

The first and second grounds of the motion for these reasons should be and the same are overruled.

As to the third ground, in which the defendant seeks to require the plaintiff to set forth how much delinquent tax and penalty was due on November 15, 1925, when the board of directors authorized its attorney to bring an action on the delinquent assessment, it is also overruled, for the reason that the information therein demanded is irrelevant and immaterial. The authorization appearing on the last page of the petition directs the attorney to bring suit on the aforesaid delinquent assessment bill as provided by statute for the enforcement of its lien against said land, and the date referred to, November 15, 1925, is merely the authorization of a corporation to its attorney to institute such action.

It is to be noted that counsel for the defendants have furnished the court with no authority or citation of authority as memorandum or in the shape of brief in support of their motion. The motion was filed February 11, 1931, and was taken by the court as submitted on the call of the Motion Docket February 21, 1931.

For these reasons the motion in each and every part thereof is overruled. An entry may be prepared accordingly.  