Commonwealth v. Reed

121 Ky. 432 | Ky. Ct. App. | 1905

Opinion by

Chief Justice Hobson

Reversing.

On January 11, 1904, J. H. Harrison, Jr., as Auditor’s agent, filed witli clerk of tlie Fayette County “Court a statement charging that Henry S. Reed was the owner of personal property, consisting of money, notes, and bonds, and of household goods, fixtures and furniture, which he had failed to list for taxation with the assessor of Fayette county for the years named in the statement. The defendant appeared and demurred to the statement, and also filed a motion asking that the plaintiff be required to make the statement more specific, and without a ruling on the demurrer or the motion he filed an answer denying the allegations of the statement. The case came on for trial in the county court upon the merits, and the following judgment was entered: “This action and proceeding having been regularly set for trial on the 14th day of October, 1903, and being regularly called for trial, the parties having answered ‘Ready for trial,’ and the court having heard the parties and the testimony in the case, and being sufficiently advised, it is ordered and adjudged by the court that the defendant, Henry S. Reed, on the 15th day of September, in the years mentioned in this proceeding, to and including the year 1902, was not the owner of any personal property, or of any money, notes, or bonds, of the value of $73,000, or any other sum, that was taxable under the laws of the State of Kentucky, or which said defendant failed to list or give in for taxation during said years. It is therefore ordered and adjudged by the court that this action and proceeding be, and the same is hereby, dismissed, in bar of any further proceeding. To this judgment the Commonwealth of Kentucky, by J. H. Harrison, Auditor’s agent, prays an appeal to the Payette Circuit Court, which is granted.” The plaintiff took an appeal to the circuit court. The defendant entered a motion to dismiss the appeal for want of jurisdiction and also for want of prosecution. The circuit court rendered the following judgment': “This action having been regularly upon the motion docket of this court for trial of the motion of the'defendant, Henry S. Reed, now appellee, to dismiss the appeal herein, and said action having been regularly called for trial upon said motion docket, the argument of counsel being heard, upon said motion, and the court having considered the same and being sufficiently advised, it is adjudged and ordered by the court that said motion be, and the same is, sustained, and it is hereby adjudged by the court that the appeal herein be, and it is now, dismissed. To the judgment of'the court sustaining said motion and dismissing said appeal the plaintiff, now appellant, excepts and prays an appeal to the Court of Appeals of Kentucky, which is-granted. ’ ’

It is clear that the circuit court did not sustain the-motion to dismiss the appeal for want of prosecution, as the judgment shows that the action was regularly called for trial on the motion, and the argument of- counsel was heard. We must therefore-assume that the. case was dismissed for want of jurisdiction.

The proceeding was had under sec. 4241, Ky. Stats. 1903, which, so far as material, is as follows: ‘ ‘ At the-next regular term of the county court after the notice has been served five days, if it shall appear to the court that the property is liable for taxation, and has-not been assessed, the court shall enter an order fixing the value thereof at its fair cash value, estimated' as required by law; if not liable, he shall make an-order to that effect. Prom so much of the order of the court deciding whether or not the property is liable to assessment, either party may appeal, as' in other civil cases, except that no appeal bond shall be-required where the court decides that the property is not liable to assessment or taxation. ’ ’

It will be observed that the statute directs that if it shall appear to the county court that the property is liable for taxation and has not been assessed the-court shall enter an order fixing its value, and if it is not liable he shall make an order to that effect. The meaning of this plainly is that, if the property is liable for taxation and has not been assessed, it must be assessed by the county court. If, on the contrary, the property is not liable for-taxation or has been assessed, it is not liable to assessment by the? county court, and he must make an order to that effect. It will also he observed that from so much of the order of the court as decides whether or not the property is liable to assessment either party may appeal, as in other civil cases. The order of the county court above quoted clearly determines that the property was not liable to assessment, for it determines that Reed was not the owner of any personal property subject to taxation which he had failed to give in. An appeal, therefore, lies from the order.

Appeals from judgments of the county court to the circuit court are regulated by secs. 724-731 of the Civil Code of Prac., in the absence of some other statutory provision governing the case; for by sec. 700 the provisions of the Code are made applicable to county courts.

By sec. 726 it is provided: “Appeals shall be docketed and stand for trial as ordinary actions and shall be tried anew as if no judgment had been rendered. ”

Sec. 724 requires the party appealing to execute a bond to the effect that he will satisfy and perform the judgment that shall be rendered on the appeal. Hence it is that in sec. 4241, Ky. Stats. 1903, it is provided that no appeal bond shall be required where the court decides that the property is not liable to assessment.. The circuit court had jurisdiction of the case as the. appeal had been regularly tak.en. The case stood as an ordinary action, and was to be tried in the circuit court de novo as though no judgment had been rendered in the county court. If the circuit court reaches a different conclusion from the county court he must remand the case to the county court, with directions to enter judgment as indicated by him; for the assessment is to be made by the county court, and is to be certified to the Auditor and entered in a book kept for that purpose by the county clerk. (Sec. 4241, Ky. Stats. 1903.)

We are referred to the case of Commonwealth v. Morehead, 78 S. W., 1105, 25 Ky. Law Rep., 1927, as. sustaining the judgment of the circuit court; but that case rests upon the construction given the judgment which was there appealed from, and which is materially different from the one before us. That case is not to be understood as conflicting with the views we have indicated.

The defendant waived his motion to make the statement more specific by not having it ruled upon before he filed his answer. The statement is good on demurrer. (Commonwealth v. Collins, 72 S. W., 819, 24 Ky. Law Rep., 2042; Commonwealth v. Zweigart, 115 Ky., 293, 73 S. W., 758, 24 Ky. Law Rep., 2147; Belknap v. Commonwealth, 120 Ky., 59, 85 S. W., 693, 27 Ky. Law Rep., 473.)

Judgment reversed, and cause remanded for further proceedings consistent herewith.