#### Isaac Chapel v. Franklin County.

Filed May 3, 1899.

No. 8884.

1. Review: Insufficiency of Petition: Harmless Error. Where a petition fails to state a cause of action and a trial results in a verdict and judgment in favor of the defendant, no error committed *by*the court in submitting the issues to the jury will warrant a reversal.

2. Payment of Excessive Taxes: Recovery. One who has paid personal taxes under protest cannot maintain an action to recover back the money so paid on the ground that the levy was made upon an excessive assessment.

3. Taxation: Equalization: Res Judicata. Where a party complain*545ing of an excessive assessment presents Ms grievance to the county board of equalization, he is conclusively bound by the order of such board fixing' the value of his property for the purposes of taxation, unless he secures a'reversal or modification of such order by the district court.

Errol, from the district court of Frauldin county. Tried below before Beall, J.

*Affirmed.*

*E. A. Fletcher,*for plaintiff in error.

O. *T. Patterson, contra.*

Sullivan, J.

This action was brought by Isaac Oliapel to recover from Franklin county the sum of $103.30 paid under protest in satisfaction of personal taxes which he claims were improperly charged against him for the year 1893. The question in controversy at the trial was the correctness of the plaintiff’s assessment as ‘ modified by the county board of equalization. The jury found in favor of the defendant, and judgment was rendered on the verdict. The judgment is right and must be affirmed, regardless of any errors that may have intervened at the trial. The petition does not state a cause of action, and the evidence affirmatively shows that Chapel has no valid claim against the county. The petition was not framed on the theory that the tax in question was levied upon property not subject to taxation, or that there had been a double assessment, or that the levy was made for an illegal or unauthorized purpose, but upon the assumption that the assessment was excessive and unjust. The record, which is in a most unsatisfactory condition, does not show the valuation of Chapel’s personalty as fixed by the assessor, but it does show that upon due notice, and after a full hearing, the assessment urns increased by the board of equalization for Turkey Creek Township. It also shows that Chapel, being dissatisfied with the action of the town board, presented his grievance to the county board of equalization, *546where a hearing was had and an order made reducing the assessment from $1,718 to $1,546. This order, never having been reversed, vacated, or modified, fixed conclusively the value of plaintiff’s personal estate for the purposes of taxation. Being a judicial order, it might have been reviewed in the district court, but it is not subject to collateral attack. *(Sioux City & P. R. Co. v. Washington County,*3 Neb. 30; *McGee v. State,*32 Neb. 149.) The precise question presented for decision in this case was tried and determined by the county board of equalization, and the plaintiff, having chosen to abide by that decision, cannot now maintain an original action on the theory that the controversy was not correctly adjudicated. The order of the supervisors of Franklin county indisputably established the correctness of the plaintiff’s assessment The judgment is

Affirmed.