
    Buell v. Schaale.
    1. Taxation: replevin. Replevin, does not lie for tlie recovery of a horse seized for city taxes, when, based upon the averment that the taxes sought to he recovered were assessed upon live stock which was raised and kept outside of the city and was there^axed. The petition should also allege that the horse was not habitually used in the city.
    2. -: -: erroneous taxation. The remedy of a party against whom taxes are erroneously assessed, is not replevin of the property distrained, but by application to the board of equalization. {Rershey v. Fry, 1 Iowa, 593; Macklotv. The City of Davenport, 17 Id., 379.) .
    
      Appeal from Clinton District Cov/rt.
    
    Thursday, September 24.
    Action of replevin for a bay mare. Plaintiff avers bis absolute ownership and right to the present possession. The defendant, for answer, admits the ownership of plaintiff, and justifies his seizure of the mare as marshal of the city under a tax list and warrant for its collection, issued by the mayor of the city of Lyons, for a balance of taxes due from the plaintiff to said city upon his personal property. The tax list and warrant are annexed and are conceded regular. For reply, the plaintiff averred that the said balance was for alleged taxes upon “ live stock which was raised and kept by plaintiff, on his farm in Hampshire township, wholly without the city, and which had been assessed, and the taxes thereon paid in said township.” A demurrer to this reply was sustained, and plaintiff appeals.
    
      W. E. Leffingwell do Bro., for appellant.
    
      Ellis <& Spence, for appellee.
   Cole, J.

We can affirm this judgment on two grounds:

First. Because the plaintiff does not aver the fact that his ^ve stock> upon which the alleged taxes were claimed and which he avers was raised and kept on his farm, was not habitually used within the city wherein, it is conceded, the plaintiff resides. And this holding can be well maintained without controverting plaintiff’s claim, made here by his counsel, that, although he lives in the city, he is not liable there for taxes upon his personal property, permanently located and used outside of the city.

Second. Because the assessment and taxation of this property within the city, when it was situated and used outside of the city, was but an erroneous taxation of it; and this upon the authority of Hershey v. Fry, 1 Iowa, 593, and the authorities cited in the opinion, and also those cited in the notes to Cole’s edition. By the charter of the city thirty days are given all persons for the correction before the council of any illegal or erroneous assessments. The plaintiff should have applied there and obtained the correction. Macklot v. The City of Davenport, 17 Iowa, 379. The tax list and warrant being regular, and the tax only erroneous, the plaintiff could not properly bring replevin.

Affirmed.  