29 P.2d 112 | Okla. | 1934
This action originated before the county treasurer of Osage county. The tax ferret employed by that county caused to be instituted a proceeding before the county treasurer to place upon the tax rolls as omitted property, certain promissory notes belonging to S.G. Kennedy and W.A. Springer. These notes were alleged to have been subject to taxation in Osage county during the years 1917, 1918, and 1919. W.A. Springer was deceased at the time of the institution of the proceedings, and notice of the intended listing and assessment of the notes was sent to his heirs. The word "taxpayers" will be used in the subsequent portion of this opinion to refer to S.G. Kennedy and the heirs of W.A. Springer.
The taxpayers filed written objections before the county treasurer to the proposed listing and assessment of the alleged omitted property. The matter was set for hearing and heard by the county treasurer, who, on the 30th day of June, 1931, rendered his decision determining that the property in question was not taxable. From this decision the county attorney of Osage county undertook to perfect an appeal to the county court. When the matter finally came on for trial before the county court of Osage county, the taxpayers filed a motion to dismiss the appeal upon the theory that it had not been perfected in the manner required by law, and that the county court of Osage county was without jurisdiction to try the issues in the cause. This motion was overruled and exceptions taken. The county court of Osage county then proceeded with the trial of the cause de novo, and at the conclusion thereof entered its judgment and decision holding that the alleged omitted property was taxable and should be listed and assessed for taxes for the years 1917, 1918, and 1919. From this judgment and decision of the court, this appeal has been perfected to this court.
The taxpayers assign as error the action of the county court in overruling a motion to dismiss their appeal from the county treasurer. They assert that the trial court was without jurisdiction to try this cause on appeal for the reason that no transcript was ever filed in the county court of Osage county attorney presented a written notice closes that no transcript whatever was filed in the county court. It appears that the county attorney presented a written notice of appeal to the county treasurer on the 8th day of July, 1931. On the same day there was filed in the office of the court clerk of Osage county a group of papers purporting to be the original papers previously on file with the county treasurer. These papers were not prepared in the form of a transcript, nor did they have any certificate attached thereto such as usually and customarily accompanies a transcript. The question then presented is whether a transcript was essential to the jurisdiction of the county court. The answer to this question depends upon a construction of the statute regulating appeals from the decisions of the county treasurer.
In this class of cases section 12346, O. S. 1931, provides, in part:
"An appeal may be taken to the county court for (sic) the final action of the treasurer within ten days, by giving notice thereof in writing and filing an appeal bond, as Section 7680, supra, provides that the county commissioners to the district court."
The effect of the above statutory provision is to adopt the procedure regulating appeals from the board of county commissioners to the district court as the procedure *250
governing appeals from the county treasurer to the county court in cases involving omitted property. Sections 7679 to 7683, inclusive, O. S. 1931, provide the procedure in appeals from the board of county commissioners. Section 7860, supra, provides that the county clerk shall prepare and file in the office of the clerk of the district court a proper transcript of the proceedings before the board of county commissioners. By analogy, then, in a proceeding to assess omitted property, it becomes the duty of the county treasurer to prepare and file a similar transcript in the county court where an appeal has been taken from his decision. Hamilton, Co. Treas., v. International Bank of Haskell,
We are thus confronted with one of that character of cases in which, after the party desiring to appeal has taken certain steps prescribed by the statutes, it becomes the duty of the public official who tried the case to prepare and transmit the record to the appellate tribunal. The effect of the failure on the part of the county treasurer to perform this duty does not seem to have been previously considered by this court. Similar statutory provisions prescribing the manner of transferring an appeal case exist in connection with appeals from the justice court and from the county court to the district court in probate matters. These statutes have been construed by this court and the effect of the failure to file a transcript by the officer charged with the duty has been considered and determined, and, by analogy, these decisions are controlling in the case at bar. Section 1022, O. S. 1931, makes it the duty of a justice of the peace in connection with appeals from his court to prepare and certify transcripts and transmit the same to the appellate court. In the case of Hart v. Grove,
"Proceedings in the appellate court are based upon the justice of the peace transcript, without which it has no jurisdiction of the subject-matter."
Likewise, section 1410, O. S. 1931, dealing with the subject of appeals from the county court to the district court in probate matters, imposes upon the judge of the county court the duty of transmitting to the district court certified copies of certain enumerated papers and proceedings. In the case of In re Folsom's Estate,
While there are some authorities to the effect that when an original paper is incorporated in and made a part of a transcript the same should be considered as a copy (Drake v. Dodsworth,
The appellees call our attention to the fact that before this cause was called for trial the county attorney of Osage county presented a motion to the county court to require the taxpayers to furnish copies of certain documents, and that the taxpayers appeared and resisted that motion without objecting to the jurisdiction of the court. It is asserted by the appellees that this constituted the entry of an appearance and waived all questions concerning jurisdiction of the court on appeal. The effect of entering a general appearance is to waive objection to the jurisdiction of the court over the person. The entry of such an appearance does not and cannot cure a want of jurisdiction of the court over the subject-matter, since jurisdiction over the subject-matter cannot be conferred by consent of the parties or by stipulation. Model Clothing Co. v. First National Bank of Cushing,
As we have already seen, the failure to file a transcript relates to and affects the jurisdiction of the court over the subject-matter and its power to determine the issues on appeal. Hart v. Grove and In re Folsom's Estate, supra. The judgment of the county court of Osage county will be vacated and the cause remanded, with directions to the county court to enter an order dismissing the purported appeal and the decision of the county treasurer, without prejudice to the rights of the county attorney to present the appeal when, and if, a proper transcript is filed in the county court.
In view of the fact that no transcript appears in the record herein from which we may judicially determine what steps were taken in the proceedings before the county treasurer, we have not in this opinion treated or passed upon questions relating to the necessity or sufficiency of the notice of appeal.
SWINDALL, ANDREWS, BAYLESS, and WELCH, JJ., concur. RILEY, C. J., CULLISON, V. C. J., and OSBORN, J., dissent. McNEILL, J., absent.