90 W. Va. 315 | W. Va. | 1922
The defendant in this writ of error to a judgment of the Circuit Court of Monroe County, affirming the action of the County Court of that county, in its refusal to exonerate the estate of Eliza Humphreys, deceased, from taxation on the sum of $50,000.00 in money» for the years 1919 and 1920, upon the ground that she, living in those years, did not own said sum of money, relies only upon the correctness of the judgment and finding complained of. It makes no denial of either the jurisdiction of this court or of the Circuit Court, but the plaintiff has submitted argument in support of the jurisdiction of both. Notwithstanding the agreement thus evidenced, it is deemed advisable to ascertain whether such jurisdiction is well founded.
Right of the citizen to apply to the county court for ah exoneration from taxes assessed upon non-taxable property, or assessed against him, upon property he does not own, is expressly conferred by sec. 132a, eh. 29, Code. It cannot exonerate upon the ground of excessive valuation of taxable property, but it may correct any error in an assessment, other than one of valuation. Neither that section nor any other statute expressly gives a right of appeal to the Circuit Court.
Being a court of general jurisdiction and superior in character and status, the circuit court has power to review judicial proceedings of the county court and correct errors therein, by writ of certiorari, in the absence of any provision for such review and correction in any other manner. Dryden v. Swinburne, 15 W. Va. 255; Welch v. County Court. 29 W. Va. 63; Poe v. Machine Works, 24 W. Va. 517; Beasley v. Beckley, 28 W. Va. 81; Meek v. Windon, 10 W. Va. 180.
Jurisdiction in this court, to review the judgments of circuit courts in such cases, by writ of error, is well established. Copp v. State, 69 W. Va. 439; Southside Bridge Co. v. County Court, 41 W. Va. 658; Mannis Distilling Co. v. County Court, 69 W. Va. 426. Under the provisions of sec. 3, ch. 110, Code, the circuit court, upon certiorari, can “determine all questions arising on the law and evidence, and render such judgment or make such order upon the whole matter, as law and justice may require.” And upon a writ of error, this court can render such judgment as the circuit court should have entered.
Timeliness of the application made to the county court seems not to be questioned. For the year 1919, the fund was not charged to Mrs. Humphreys. But, in 1920, she was charged with it for that year and she was then back-taxed as to it, for the year 1919. The application for exoneration was made within one year from the date of the assessment made for both years, in 1920.
There are choses in action, however, that are clearly not taxable. A mere claim for unliquidated damages growing out of a tort would not fall within the term, ‘ ‘.credit, ’ ’ as defined by sec. 62 of eh. 29 of the Code. It includes claims and demands “owing upon bond, note, certificate, book account, or otherwise.” To come within the meaning of the term, “owing,” it must be evidenced as a debt in some way or expressly or impliedly admitted as a debt due or to become due. A mere disputed and unackowledged demand or claim is not taxable as a credit. It must have been in its inception, or be at the time of the assessment, a debt of some kind, due or to become due. Again, if it were a taxable chose in action, within the meaning of the term “credit,” it would not be taxable as “money,” and its actual value, which might be only a small fraction of $50,000.00, would be the basis of taxation.
Alleged incompetency of W. J. Humphreys as a witness, however, seems to be the principal ground of argument as well as of the decisions of the county and circuit courts. The affidavits were excluded both upon the theory of incompetence of the affiants, they being the distributees, and the form of their evidence, but the evidence of W. J. Humphreys was excluded upon the theory of disqualification only. If his evidence is admissible, it obviously sustains the application, because it is wholly uncontradicted. None of the witnesses were
Nor is there any occasion to say whether the circuit court had jurisdiction to try the case de novo, and admit evidence in addition to that upon which the county court acted. After having gone outside of the record, upon the issue, it discarded the additional evidence taken and affirmed the judgment, upon the record as certified by the county court.
The presumption in favor of correctness and regularity of the assessment was clearly and fully rebutted and overthrown by the admissible evidence to which reference has been made.
For the reasons stated, the judgments of the circuit court and the county court are clearly erroneous and will have to be reversed. An order will be entered here, reversing them, adjudicating the right of the applicant, to have the estate of his intestate exonerated from payment of taxes on said sum of $50,000.00, and remanding this case to the Circuit Court of Monroe County, with direction to that court to remand it to the County Court of Monroe County, for entry of a proper
Reversed and remanded.