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District Court of Appeal, Second District, Division 3, California.


Civ. 13685.

Decided: December 19, 1942

J. H. O'Connor, Co. Counsel, and Gordon Boller, Deputy Co. Counsel, both of Los Angeles, for appellant. Holbrook & Tarr, Harold C. Tallmadge and W. Sumner Holbrook, Jr., all of Los Angeles, for respondent.

The defendant has appealed from a judgment that the plaintiff recover the sum of $26,004.01, which the trial court determined had been paid by the plaintiff because of an illegal tax levied against it. The defendant's general demurrer to the complaint, in which the facts of the claimed illegal levy were set up, was overruled, the defendant being given ten days in which to answer. The ten days passed without an answer, the defendant's default was taken, and judgment followed.

We see no reason to reverse the judgment. The tax which the plaintiff paid was, according to the allegations of the complaint, assessed upon the possessory interest the plaintiff had in certain airplane parts and materials alleged to belong to the United States government. The complaint alleged, however, that the plaintiff had no possessory interest in any of the property described in the assessment, but that “all right, title and interest, including the right of possession thereto, at all times was solely and exclusively in the Government of the United States of America.” Further facts were alleged showing that plaintiff's payment of the tax was not voluntary, and that a demand for its refund had been made and denied.

The parties have argued this case as though we had before us the facts upon which the ultimate fact depends; that is to say, they have debated whether or not the plaintiff had a possessory interest in the airplanes and airplane parts described in the assessment and, if so, whether the interest was taxable. But this appeal is presented on the judgment roll alone, and the complaint declares that the plaintiff had no possessory or other interest in the personal property described. It follows that we have no basis upon which to consider this case on its merits, as we are engaged in doing the case of Douglas Aircraft Company v. Byram et al., 134 P.2d 15.

The judgment is affirmed.

BISHOP, Justice pro tem.

SCHAUER, P. J., and SHINN, J., concurred.

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