181 Ky. 709 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
In April, 1916, the Commonwealth filed two suits in the Fayette county court seeking to assess the personal estate of L. V. Harkness, deceased, for back taxes. One of these actions was filed by Walton M. Byars, revenue agent, and the other was filed by T. C. Bradley, sheriff of Fayette county, both suits, after an amendment to the latter, covering the years 1912-1916, inclusive. On June 2, 1916, and while both actions were pending in the Fayette county court, an agreed judgment was entered
“It is well settled that a judgment of a court having jurisdiction of the parties and the subject matter imports absolute verity and cannot be collaterally attacked; the only way in which it may be avoided is by direct proceeding brought for the purpose of having it vacated. ”
To the same effect are Buchanan, et al. v. Henry, et al., 143 Ky. 628; Torian, et al. v. Caldwell, et al., 167 Ky. 670; Bamberger v. Green, 146 Ky. 258, and Harrod v. Harrod, supra.
As this is clearly a collateral attack upon the judgment entered in the Bradley suit, and, as a collateral attack cannot be made upon such a judgment simply because it is erroneous or was procured by fraud or collusion, it results that that judgment is a complete bar to this proceeding under the above authorities unless the judgment in the Bradley case is absolutely void, and this the Commonwealth seeks to establish upon the ground that under chapter 116 of the Acts of 1912, now sections 4258-4260 of the Kentucky Statutes, a sheriff as a relator cannot bring a suit in the name of the Commonwealth for the collection of back taxes until after the suit has been approved by the supervisor of revenue agents.
Counsel for the Commonwealth are mistaken in saying that in the case of Commonwealth v. Central Consumers’ Company, 91 S. W. 711, this court construed the language of section 4260, according to their contention. It was only held there that the term, revenue agent, as used in section 4260 of the Kentucky Statutes, included both the revenue agent for the county and the revenue agent for the state at large. The term, revenue agent, as used in the several statutes which have been enacted with reference thereto has never, so far as we are able to learn, been used to include the sheriff; but in all of these statutes a distinction is clearly manifested, and when both are included both are named, or some such term as “officer,” “officer instituting the proceedings,” or “other officer of the Commonwealth,” is employed.
We, therefore, conclude that the legislature in neither the act of 1912 nor the act of 1906 meant to provide that an action by the sheriff to assess omitted property must be approved by the supervisor of revenue agents before being filed, from which it follows that the Bradley judgment is not void and cannot be attacked in this action; but if attacked it must be upon the ground that
“It is not the.final judgment in the first suit, but the first final judgment, although it may be in the second suit, that renders the issues in such a case res judicata in the other court.” .
The rule is thus stated in Freeman on Judgments, section 249:
“When a matter is once adjudicated, it is conclusively determined as between the same parties and their privies; and this determination is binding as an estoppel, in all other actions, whether commenced before or after the action in which the adjudication was made.”
The same rule is stated a little differently in 23 Cyc. 1113, thus:
“By the weight of authority the fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order of time in which the suits were commenced.”
See also Allis v. Davidson, 23 Minn., 442; Insurance Company v. Harris, 97 U. S. 331; Bank of U. S. v. Merchants Bank, 7 Grill (Md.) 415.
In the recent case of Louisville & Nashville Railroad Company v. Commonwealth, &c., 181 Ky. 193, it was argued for the Commonwealth, in a proceeding like this to assess omitted property, that the judgment in. the suit filed by a revenue agent, Hopkins, was not a bar to a like action filed by another revenue agent named Huntsman, because the Hopkins suit was filed after the Huntsman proceeding; but this contention was overruled and the judgment rendered in the suit filed last was held to be a bar to a further prosecution of the earlier suit.
The above conclusions with .reference to appellee’s plea in Bar render it unnecessary for us to express an opinion upon the propriety of the lower court’s action in overruling the demurrer to the rejoinder filed by the appellee.
For the reasons indicated the judgment is affirmed.