Page:North Dakota Reports (vol. 3).pdf/106

 depends upon the request of either party to the action.” A majority of this court is of the opinion that the language quoted must be confined to the facts of the case in which it was used. In that case there were no subsequent taxes considered by the court, and the legal validity of all the taxes in question was put in issue by proper averments, and was fully litigated at the trial. The court say, on the same page of the opinion: “It was the duty of the trial court, under the evidence, to have entered judgment.” The difference between the two cases is apparent. In the case at bar there is no averment alleging the validity of the subsequent taxes, or that the same were ever assessed or levied by any one. Nor was there any evidence at the trial tending to show that any subsequent tax paid by defendant was ever levied or assessed. This court is of the opinion that it would be a dangerous precedent and one subversive of established principles, to hold that the mere fact of payment will suffice to show that the sum paid represents the “true and just amount” of a tax, and hence will suffice to warrant a trial court in entering judgment for such amount. Under established rules of pleading and evidence, the party seeking judgment must allege and prove all facts essential to a recovery. In this case defendant is seeking a judgment. In California a statute allowed an action to be instituted to recover a delinquent’ tax. Under this statute the courts of that state uniformly have held that all facts essential to a tax, including assessment and ley, must be alleged in the complaint. In a recent case brought under the statute, People v. Railroad Co., (Cal.) 23 Pac. Rep. 303, a demurrer to the complaint was sustained, because material facts were omitted. Among other points made is the following: ‘An averment of indebtedness for taxes, without an avernant that any taxes were levied on defendentdefendant [sic] or his property, or, if levied, when, where, and by whom the levy was made, or whether the taxes were based on the assessment mentioned above, or that there are any taxes against defendant delinquent or unpaid, is insufficient.” See, also, People v. Cone, 48 Cal. 427; 2 Desty, Tax’n, 712. The rule stated by these authorities is