*11On Petition for Rehearing.
Howard, C. J.In their petition and brief for a rehearing . of this appeal, counsel for appellant have, as we think, sought to build up a case outside the record, and on that vantage ground they have attempted to show that the opinion of the court is erroneous. Were the board of equalization in the case before us proceeding to assess any omitted property, much of what counsel say might be in point. Erom the information, however, we learn that the board was in session, ‘‘investigating according to law, and inquiring into, ” the alleged fact that divers tax-payers had omitted property from assessment. Counsel do not deny that the board had, in fact, the power to add and assess omitted property; but they contend that before any such property shall be added to the list and assessed, notice must be given to the owner. To this we agree entirely. But, as already cited from State v. Wood, supra: ‘ ‘ The power to add and assess omitted property carries with it the power to investigate and determine as to whom the property belongs, and whether or not' it has, in fact, been omitted from the tax lists of the owner. And the power to make such investigation includes the power to get information from the supposed owner and other witnesses.” The business in which the board was engaged in the'case before us, was not in assessing • omitted property, but in finding out whether there was any omitted property.
Counsel take a strange position in practically assuming that there can be no such preliminary examination. The property of all other tax-payers may be inquired into, from themselves or from any other witnesses, preliminary to listing the same for taxation; and no good reason can be given why depositors in banks should form an exception to the rule. If on such examination there *12should be any indication that any person’s property had been omitted from the assessment lists, then is the time when the board may notify him to appear and show, if it be true, that such property has in fact not been omitted, or that no such property is in existence. If there be no prehminary examination, it may well be that the board might never learn whether any propórty was omitted; or, if there was any such omission, they might never learn who is the owner. All rights are saved to the owner, provided there be no assessment of the property until he has received notice to attend and be heard. He cannot complain because the board sees fit to exercise its statutory right to first try to find out whether any property has probably or possibly been omitted.
We think also that counsel go outside the record when they draw our attention to what information the board originally sought, and what mandate they asked from the court. A plaintiff may ask more than the trial court will give; but the appeal is not from the complaint, but from the judgment. If the judgment was clearly right, it is not material that the plaintiff should have prayed for more than the court saw fit to grant. The decree of the court must be within the pleadings, but it is not necessary that it should give all that is asked; nor will the judgment be erroneous simply for the reason, if it should be so, that the plaintiff had demanded more than he was entitled to.
The order of the court was that the appellant “answer as to such questions as may be propounded to him by said board, touching or relating to the said investigation, as to any. person or corporation of said county named or mentioned by said board.” The inspection of the books by the board is permitted only to the same extent, namely: “in order to ascertain if cony person or *13corporation of said county, that may he mentioned hy it, had money, notes or bonds on deposit, etc.”
Filed June 14, 1895.The order of the court so made was clearly within the letter and spirit of the statute. Indeed, it would seem that counsel’s contention is rather against the statute than against the decision of the court; and if the position of counsel were correct, we are inclined to think they should ask for the overthrow of the statute, (section 6317, R. S. 1881) which expressly provides that ‘ for the purpose of properly listing and assessing property for taxation, and equalizing, and collecting taxes, county auditors, auditor of State, and boards of equalization shall each have the right to inspect and examine the records of all public offices, and the books and papers of all corporations and taxpayers in this State, without charge; and they shall also have power to administer all necessary oaths or affirmations in the discharge of their duties.” Prom appellant’s able and earnest briefs one would never think that such a statute as this was in existence at the date of the order violated by appellant. The law, by its very terms, applies to all tax-payers of the State, whether corporations or natural persons ; and it is the duty of the courts to apply it as it stands on the statute books.
The petition is overruled.