the bank, he was entitled in a proper proceeding to be subrogated to all the rights of the bank. This is true whether he was surety for the intestate or co-surety with him for another person. The question, then, is whether this is such a proceeding, and whether such relief can be granted under the allegations of the petition and the issue as made up in the court below.

Leaving out of view certain allegations in the petition we have not deemed it necessary to refer to, the only disputed matter scems to have been as to whether the plaintiff was surety for the intestate or co-security with the latter for another person. This, it seems to us, must be so, because the payment of the claim to the bank by the plaintiff, and the assignment thereof, are admitted by the defendant in the answer. As to these matters, therefore, there was no controversy. There is no doubt the plaintiff's cause of action against the defendant must be based on the fact that he paid the bank. White v. Brown, 5 Dutch. 307; Bank of Silena v. Abbott, 3 Denio, 181; Drefake v. Tuttle, 42 Iowa, 177; Johnson v. Bilden, 49 Iowa,

No exceptions having been taken to the sufficiency of the petition, either by motion, demurrer or answer, we think it was sufficient, and that the court should, under the prayer for general relief, have investigated and determined the extent of the suretyship, the amount to which the plaintiff was entitled, and allowed and established the claim of the plaintiff as a claim against the estate, and subrogated him to all the rights of the bank. Having done this, the plaintiff, of course, would be entitled to such orders as were required for the enforcement of such additional rights as it should appear he was entitled to.

Reversed.

THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY VS.
GEORGE W. GRINNELL, and 23 other cases.

Filed December 17, 1879.

Where a writ of error from the supreme court of the United States to this court is lodged with the clerk of this court, with the security required by statute, within sixty days from the rendition of the judgment, it operates as a supersedeas, but does not, if not so lodged, until after that time -[Ed.

PER CURIAM. Plaintiff files its motion in these cases for an order directing the clerk to issue writs of possession or a procedendo in each case. The facts upon which the motion

is based are these: The judgments of the court below in these cases were affirmed by the court June 14, 1879, and an order made that a procedendo issue in each case. Writs of error were allowed in the respective cases, and citations, as required by the statutes of the United States, were signed by the chief justice of this court August 5, 1879, and filed with supersedeas bond August 14, 1879, in the office of the clerk of this court. Writs of error were issued and lodged with the clerk of this court September 12, 1879.

The plaintiff insists by its motion, and this is the only point relied upon by counsel in their argument, that judgments of this court are not superseded for the reason that the writs of error were not lodged with the clerk of this court within the time prescribed by the statutes of the United States. Upon this ground, if no other, plaintiff asks that procedendo be issued in each case. A writ of error lodged with the clerk of this court, with the security required by the statute, within 60 days from the rendition of judgment, operates as a supersedeas. U. S. Rev. St. § 1007. If it is not so lodged within that time it does not so operate. City of Washington v. Denison, 6 Wal. 574. The judgments not being superseded, the power exists in this court to enforce them by proper process. U. S. Rev. St. § 1007; Code, § 3186; Wallon v. Williams, 7 Cranch, 278.

The motion of plaintiff is sustained, and the clerk will issue in each case a procedendo, as provided in the judgment therein.

GEORGE S. SCOTT, Appellant, vs. THE COUNTY OF CHICKASAW,

Appellee.

Filed December 17, 1879.

This cause, being one at law, was not at its former hearing, and is not now, triable de novo. Failure to object and except to a ruling of the court below, to an amendment allowed to be made to pleadings, is a waiver of such objection. Amendment allowed, held, proper. The right to recover back the taxes paid on lands, which were at the time exempt from taxation, is barred in five years from the time of such payment: One claiming title to land under a tax deed cannot, on discovering his title to be void, the property being subject to taxation, recover from the county, taxes lawfully assessed paid by him while claiming title under such deed. Former decision in this case, 46 Iowa, 253, explained.-[ED.

Appeal from Chickasaw district court.

Action to recover for taxes paid by plaintiff and his grantors upon lands which, as he alleges, were not subject to tax

ation. The case was tried to the court below upon an agreed statement of facis, and judgment rendered for defendant. Plaintiff appeals. The case has been before in this court. See 46 Iowa, 253.

Dosh Brothers, for appellant.

H. H. Potter, for appellee.

BECK, C. J. 1. By reference to the opinion in this cause when it was before here (46 Iowa, 253) it will be discovered that a tax title held by plaintiff had been, in a proper action, declared to be void, for the reason that the land was not taxable for the years for which it was sold for taxes-1858, 1859 and 1860-the title thereof being in the United States. Thereupon plaintiff brought this suit to recover from the county, on the ground that the equitable title of the land, when the assessment was made, was held by Jones, the defendant in the first action. We held that the land was not subject to taxation for the years for which it was sold, and the tax title, therefore, was properly adjudged to be void, and that plaintiff ought to recover from the county the taxes paid upon the land, and interest. The judgment of the court below was reversed and the cause was remanded for a new trial.

After the cause had been remanded to the court below upon leave defendant filed an amendment to its answer alleging: First, that the land was patented to Jones in 1867, upon an entry male the same year, and became subject to taxation for 1868 and subsequent years, and that plaintiff cannot recover against the county for taxes paid after the land became taxable; second, that the taxes for the year 1868 and prior years were paid by plaintiff more than five years before the commencement of this action, and recovery therefor is barred by the statute of limitations. No objections were made, or exceptions taken, to the order granting leave to file this amended answer by the plaintiff; his attorney being present when it was made.

At the next term plaintiff moved to strike out the amendment to the answer on the grounds: First, it was filed after the case was decided by the supreme court upon a trial de novo, and the judgment of the district court reversed, and the cause remanded; second, the defense made in the amendment existed at the first trial and was not pleaded by defendant; third, the averments of the amended answers are in conflict with the opinion of the supreme court. This motion was

overruled. The first error assigned by plaintiff assails this ruling upon the motion.

2. The plaintiff states in the abstract that the trial in this court on the former appeal was de novo. This is denied by defendant. The statement in the abstract and motion is not correct. The case was, and is, at law, and could not have been tried here de novo. This is clearly shown by the opinion in the former appeal. The judgment of this court reversed the decision of the court below, and remanded the cause for a new trial. After the case was again in the district court amendments to the pleadings were allowable in the furtherance of justice. Code, § 2689; Bibb v. Preston, 3 Iowa, 325. If any valid objection existed to the amendment it should have been made when leave was asked to amend in the court below. By failure to except to the order of the court, objection thereto was waived by plaintiff, and the ruling can not be assailed in this court. This conclusion is based upon familiar rules prevailing here.

3. The amendment is not in conflict with our former decision in this case. We held that, upon the case then presented, the judgment of the court below so wanted the support of the testimony that it could not be sustained. While the decision is not thus expressed, yet it is to this effect. The cause was thereupon remanded for a new trial. We conclude that the court below did not err in refusing to strike defendant's amended answer.

4. Plaintiff insists. that the judgment of the court below now under review is so in conflict with the evidence-the agreed statement of facts upon which it was tried-that it cannot be supported. We will proceed to examine this position. It will be remembered that we have stated the land was sold for the delinquent taxes of 1858, 1859 and 1860, and plaintiff claimed title under this sale. It has been determined in the first action, and upon the former appeal in this case, that when the land was assessed and sold it was not taxable, and that Jones' entered the land in 1867, and in the same year received a patent therefor from the government. The land became taxable after Jones' entry, and was subject to taxation for 1868, and subsequent years.

This action was commenced June 26, 1876. We must first inquire whether recovery for the taxes, paid more than five years before the commencement of this action, is barred by the statute of limitations. This inquiry will cover payments made previous to June 26, 1871. The taxes for 1869

and prior years were paid before that date. It may be admitted, for the purpose of the present inquiry, that the defendant was liable to plaintiff upon payment of these taxes, on the ground that they were illegally assessed, the land not being subject to taxation. This is true as to all taxes levied before the entry of the land. It may be conceded as to other taxes, paid prior to June 26, 1871.

We have held that an action to recover of a county, for taxes paid upon lands which were exempt from taxation, is barred in five years after the date of payment. Callanan v. The County of Madison, 45 Iowa, 561. The case before us, as to the taxes under consideration, falls within the rule, and is upon all-fours with the case cited. The correctness of our decisions in that case is questioned by plaintiff's counsel. We discover no reason for doubting it, and are still well satisfied with it. The rule of the decision must be regarded as the settled doctrine of this court.

5. We come now to the consideration of the taxes paid after June 26, 1871, recovery for which is not barred by the statute of limitations. The land, at that time, was subject to taxation, for it had been entered by Jones in 1867. Plaintiff, or his grantors, paid the taxes as owners of the land under the tax deed made in 1865 and 1867. The question presented is simply this: Can one claiming title under a tax deed recover from the county for taxes paid by him, as owner of the land which was subject to taxation, after he discovers that his title is void. It must be remembered that the payment here contemplated was not made in purchase of the land at tax sale. The payment was after the purchase was completed by the execution of a deed. The tax-payer in this case stands in the same position as any other claimant of land whose title fails. Is the county liable to reimburse him for the taxes he has paid? Surely not, unless there be some statute creating such liability. We find no such statute. Counsel for plaintiff rely upon Revision, §§ 762 and 785, to support the position that such liability exists. We are of the opinion that they have not the force claimed for them. Section 762 creates liability of the county when taxes are erroneous or illegal on account of errors in the assessments, levy, or other proceedings pertaining to the taxation of the property, and the taxes have been paid, or the land sold therefor. In such cases recovery may be had against the county.

In the case at bar there was no irregularity in the proceedings for the taxation of the land. The property was subject