Scranton Lbr. Co. v. Knox Atty.-Gen.

109 So. 721 | Miss. | 1926

^* Corpus Juris-Cyc References: Appeal and Error, 3CJ, p. 371, n. 50; Equity, 21CJ, p. 36, n. 16; p. 68, n. 11 New. Appellant, Scranton Lumber Company, filed its bill in the chancery court of Perry county against the predecessor in office of the present attorney-general, one of the appellees, and the other appellees, by which it is sought to enjoin the prosecution by the attorney-general and his associates of an appeal by the former to the circuit court of Perry county from an order of the board of supervisors of that county approving an increase of appellant's timber assessment for taxes for the year 1923. A temporary injunction was issued and served in accordance with the prayer of the bill. The cause was heard by the chancery court on the bill, answer, and motion to dissolve the injunction. A decree was entered dissolving the injunction, from which an appeal was granted to settle the principles of the case.

The defendants in the court below, appellees here, are the present attorney-general, E.C. Sharp and F.C. Hathorn, attorneys representing the attorney-general, and C.C. Dearman, clerk of both the chancery and circuit courts of Perry county. The bill, so far as its allegations are pertinent to this appeal, alleged, in substance, that on the 7th day of November, 1923, a final order of the state tax commission approving the assessment roll of Perry county was entered on the minutes of the board of supervisors of that county, and the board, on that date, adjourned its November meeting; that within twenty days after the final order of adjournment of the board, the attorney-general claimed to have filed with the clerk of the board of supervisors a petition for appeal from such order, so far as it approved appellant's assessment of timber for taxes; that appellee C.C. Dearman, as clerk of the board, marked the petition filed as of that date; that in truth and in fact, for certain reasons set out in the bill, not necessary here to mention, the appeal was not taken from the final order of the board approving appellant's assessment until about three months after the adjournment of the board, and therefore the appeal was barred.

The bill alleged that the filing date of the attorney-general's petition for appeal entered thereon by appellee Dearman as clerk of the board of supervisors was a false date; that instead of the appeal having been taken on the 27th of November, 1923, as shown by such filing date, it was taken on or about the 27th of February, 1924. The prayer of the bill was that appellee Dearman, as clerk, be required to enter on the petition for appeal by the attorney-general its alleged correct filing date, and that the injunction against the attorney-general and his assistants, restraining them from proceeding with the appeal in the circuit court, be made perpetual.

Chapter 120, Laws 1918, amending section 81, Code of 1906 (Hemingway's Code, section 61), among other things provides that the attorney-general, in case the state be aggrieved by any decision by the board of supervisors assessing property for taxes, may, within twenty days after the adjournment of the meeting at which such decision is made, or within twenty days after the adjournment of the meeting at which the assessment rolls are corrected in accordance with the instructions of the state tax commission, or within twenty days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the state tax commission is entered, appeal from such decision to the circuit court of the county in like manner as in the case of any person aggrieved, as provided by that act.

Appellant contends that it makes a case by its bill for the correction of the filing date of the petition for appeal by the attorney-general. On the other hand, appellees' position is that, conceding that the filing date of the attorney-general's appeal was erroneous, and that, in truth, the appeal was not taken until after the expiration of the period allowed by statute for the taking of such appeals, nevertheless, appellant has a complete remedy at law. The chancellor took that view.

Whether an appeal is barred by lapse of time may be shown in the court in which the appeal is pending, whether the cause originated in a court of law or a court of equity. It is not necessary in such a case for the party claiming the appeal to be barred to go into a court of equity to establish such bar. He may show, in the cause in which the appeal is taken, the necessary facts in order for the court to which the appeal is taken to determine whether the appeal is barred by lapse of time. The court having jurisdiction of appeals in such cases is vested with full authority to determine any fact bearing on the question whether or not it has acquired jurisdiction by the appeal.Farmer v. Allen, 85 Miss. 672, 38 So. 38. To require a party claiming an appeal to be barred to leave the court in which the appeal is pending and go into a court of equity to have the latter court settle the question whether or not the court in which the cause is pending has acquired jurisdiction by appeal would be very burdensome and expensive to such party, and, so far as we are informed, without precedent.

Appellant argues, and cites authorities to support his contention, that an injured party has the right to go into a court of equity to correct a false record in which he is interested. Conceding that principle of law to be sound, it has no application here. The only interest appellant has in correcting the filing date of the attorney-general's petition for appeal is to show that the appeal is barred. Exactly that fact may be shown in the circuit court in the trial of the appeal from the order of the board of supervisors. That is the only interest appellant has in the filing date of the petition. If appellant, as we hold, will be permitted to accomplish the very thing in the circuit court that he could accomplish in the chancery court, it seems it would be a vain thing to delay the circuit court case to await the judgment of the chancery court.

Affirmed.