The opinion
HAMILTON, J.
Sec 2589, GC, provides:
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* If at any time the auditor discovers that erroneous taxes or assessments have been charged and collected in previous years, he shall call the attention of the county commissioners thereto at a regular or special session of the board. If the commissioners find that taxes or assessments have been so erroneously charged and collected, they shall order the auditor to draw his warrant on the county treasurer in favor of the person paying them for the full amount of the taxes or assessments so erroneously charged and collected.
There is no allegation in the petition that the respondents found that the taxes or assessments had been erroneously charged and collected. The basis of the relator’s claim is that the respondents refuse to order the auditor to draw a warrant on the county treasurer. If the county commissioners have found the taxes to be erroneously charged and collected and failed to make the order, the writ would lie, and the petition would be sufficient as against the demurrer. In the absence of an allegation that the commissioners have so found, there is no cause of action alleged, since the commissioners would have no power to order the warrant drawn, unless and until
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they found the taxes had been assessed erroneously.
If the county commissioners had found against the relator as to the errors in the collection of the taxes, the relief of the party assessed could be found under the provisions of 82461, .GC, which provides:
“A person, aggrieved by the decision of the county commissioners in any case, may appeal within fifteen days thereafter, to the next Court of Common Pleas, notifying the commissioners of such appeal at least ten days before the time of trial. * *
Our conclusion is, there being no allegation in the petition that the. county commissioners had found in favor of the relat- or, the petition does not state facts sufficient to constitute a cause of action, entitling him to the relief prayed for.
The writ is refused.
ROSS, PJ, and CUSHING, J, concur.