127 Ky. 358 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
On March 14, 1907, appellant, D. L. Hardesty, revenue agent for the State at large, and its Attorney General, filed in the Jefferson county court a statement alleging that appellee was the owner of more than $300,000,000 worth of personal property, consisting of stocks, bonds, and securities in various corporations, companies, and associations, on September 1, 1906, that had not been listed for taxation for the year 1907, by any of the officers charged with that duty; that appellee was a domestic corporation, with its home office and place of business in Jefferson county, Ky. A list of the property was filed with the statement. On April 1, 1907, appellee moved the court to require appellant to elect whether it would prosecute this1 suit or the one instituted by George
Appellant claims that the first should have been abated. The law is that the last action brought should be abated. It is priority, and not the mere pendency of a suit, that abates a second. The pendency of a suit subsequently instituted cannot be pleaded either in abatement or in bar to a prior suit between the same parties for the same cause of action. See 1 Ency. of Pleading & Practice, 752; Phillips v. Southern Division C. & O. R. R. Co., 110 Ky. 33, 22 Ky. Law Rep. 1530, 60 S. W. 951; Lucas v. Comth,, 89 S. W. 292, 28 Ky. Law Rep. 372 and Butler, sheriff v. Watkin’s Ex’rs, 27 S. W. 995, 16 Ky. Law Rep. 302. In this last case the auditor’s agent filed a statement on June 12, 1891, on which process was issued on June 18, 1891. The sheriff listed the property on June 17, 1891, and filed his list with the county court clerk. It was held that the proceeding» by the auditor’s agent took precedence of the sheriff’s proceedings. It is claimed by counsel for appellant that they were before the board of tax supervisors, endeavoring to get the property of appellee listed for taxation, when Alexander instituted his proceeding of February 7, and by reason of this fact the court should determine that this proceeding instituted by Hardesty should be upheld as having priority over the Alexander suit. The proceeding by -the representatives of the Commonwealth before the board of tax supervisors was not the institution of an action
The remaining question to be determined is the claim of appellant’s counsel that under sections 113, 114, 145, 4169, and 4170 of the Statutes, the Attorney General has the power to select which revenue agent shall prosecute an action to assess omitted property, and to prosecute it in .conjunction with him. The Attorney General is an officer whose election is provided for by the Constitution; and it is provided by section 91 of the Constitution that his duties shall be such as may be prescribed by law; therefore his duties are such as are provided by the Legislature This precise question was considered and determined in the case of Coulter v. Denny, 67 S. W. 65, 23 Ky. Law Rep. 1619, in which the court said: “As it was the duty of the auditor’s agent to institute the proceeding against Cecil, and the duty of the county attorney of that county to have prosecuted it, it follows that it was not the duty of the Attorney General under section 113 to represent the Commonwealth in the Boyle county court, nor was it one of the actions which he was authorized to institute and employ an attorney to assist in its prosecution under section 114.” In that case this court considered and construed all the sections referred to by appellant, except sections 145, 4169, and 4170. These sections have no application to the question herein involved. Section 145 provides for prosecutions by the Attorney General, upon information of the Auditor, of all public officers or public debtors who fail to render their accounts at the proper time, or pay the amounts in their hands due the Commonwealth into the treasury. Section 4169 provides for the institution of actions by the Auditor, to be prosecuted by the Attorney General,
For these reasons, the judgment of the lower court is affirmed.