Garrett v. Creekmore

| Ky. Ct. App. | Oct 18, 1905

Opinion by

Chief Justice Hobson

Affirming.

Sec. 4250, Ky. Stats. 1903, is as follows: “Any person or corporation claiming to be erroneously charged with any tax upon property not owned by them, may, at any time not later than the next regular county court after they have received notice of the same, by demand made upon them to pay the tax, or for evidence in support of said complaint to the county court of the county in which the assessment was made; and if said court, after due consideration of the evidence, finds that they were not the owners of the property assessed, it may correct the same by releasing them from the payment of the tax thereon; and it shall be the duty of the court to have the property immediately listed as against the rightful owner thereof. County courts shall have further authority, after giving notice to the sheriff and assessor, to correct any mere clerical errors in the assessment, and any correction made without such notice shall be void. The right of appeal from the decision of the court as herein provided shall apply to all final orders of court made under this section; and it shall be the duty of said court to certify its action to the Auditor of Public Accounts and sheriff as provided in said preceding section.”

On October 6, 1902, the Madison County Court entered an order exonerating David Gfarrett from the payment of taxes on $2,000, the value of a tract of land assessed to him, and at the same time ordered it charged to A. W. Creekmore. This order was based upon the ground that Creekmore was the owner of the property on September 35th, and that thereafter lie had sold it to Garrett. Afterwards, on November 30, 1903, the county court made an order setting aside the order exonerating Garrett and listing the property to Creekmore, on the ground that the former order ivas entered without notice to Creek-more and that Garrett was in fact properly chargeable with the tax; it appearing that in the sale of the land from Creekmore to him it was agreed between them that Garrett should pay the taxes for. that year. Garrett appealed from this order to the Madison Circuit Court, and in that court the appeal was dismissed for want of jurisdiction, and Garrett has prosecuted an appeal to this court.

A motion has been made in this court to dismiss, the appeal for want of jurisdiction, and this is the first question to be determined. By sec. 950, Ky. Stats. 1903, no appeal shall be taken to the Court of Appeals from a judgment for the recovery of money or property, if the value in controversy is less than $200, exclusive of interest and costs; and, subject to certain other exceptions not here material, it is. provided that the court shall have appellate jurisdiction “in all other civil cases” over the final orders and judgments of the courts. The judgment in controversy is not for the recovery of money or personal property. It is a judgment determining whether a certain piece of land should be assessed to Garrett or Creekmore, and does not fall within any of the exceptions named in sec. 950. The motion to dismiss, the appeal is therefore overruled.

It will be observed that sec. 4250 above quoted expressly provides that the right of appeal from the decision of the court as therein provided shall apply to all final orders made under the section. The purpose of the Legislature in so providing is to allow appeals to the circuit court in this class of cases without regard to the amount of the tax involved. The language of the statute is not capable of any other construction, for in express words it is provided that the right of appeal shall apply to all final orders of court made thereunder. We conclude that the circuit court erred in dismissing the appeal. We therefore proceed to consider the main question, and that is whether the county court properly set aside its first order. That order, having been made without notice to Creekmore, was invalid as to him, and the county court did right in giving him a hearing. To hold otherwise would be to deprive him of his property without due process of law.

It is insisted for appellant that, although Garrett agreed with Creekmore to pay the taxes, the property should have been assessed to Creekmore on the ground that taxes must be levied by law, and may not be levied by agreement of parties. The general principle is admitted. The tax was levied by the general law, and was a lien upon the property, whether the assessment was made to Creekmore or to Garrett. (Ky. Stats. 1903, secs. 4056, 4021, 4053.) If Garrett had paid the taxes to prevent the land from being sold when it was assessed in the name of Creekmore, he could not have recovered the amount so paid from Creekmore, as in the trade for the land he had assumed the payment of the taxes. If the land had been assessed to Creekmore, and Creekmore had paid it, he might have recovered the amount so paid, from Garrett. As the county court properly set aside its original order, and as Garrett was primarily liable for the tax, he was not prejudiced by having the property assessed in his name, and the judgment of the circuit court, which left the order of the county court in force, prejudiced none of his substantial rights. By sec. 756 of the Civil Code of Practice, no judgment may be reversed for an error not prejudicial to the substantial rights of the appellant.

Judgment affirmed.

Petition for rehearing by appellant overruled.