115 Ky. 736 | Ky. Ct. App. | 1903
Opinion of ti-ie court by
Affirming.
L. E. Sinclair, auditor’s agent under Auditor Stone, began proceedings against appellant to require him to list for taxation certain omitted properties for certain designated years. The statement was filed in the county court as required by statute. Por some reason not explained in
It is also contended for appellant that when Auditor Stone’s term of office expired the terms of all the auditor’s agents of the State terminated with it; that therefore Sinclair had no right to prosecute the claim. For aught this record shows, Sinclair had not been removed as auditor’s agent at the time of the proceedings in this case. Section 4258, Kentucky Statutes, 1899, allows the Auditor of Public Accounts to appoint an agent in each county of the Commonwealth, who shall hold his office and be removed at the pleasure of the auditor. It is made his duty, by section 4260 of the statutes, to cause to be listed for taxation, in the manner required by law, all property In the county for which he may be appointed, and which may have been omitted to be assessed by the assessor or other tax officials. This court held in the case of Smith v. Coulter, Auditor, 113 Ky., 74,
But we do not deem it material to the rights of the parties to this litigation whether Sinclair continued to hold office as auditor’s agent till the final trial of this case. The auditor’s agent is noí a party to this proceeding, nor is his presence essential. The action is one in the name of the Commonwealth, instituted by, or upon information furnished by or upon motion of, the auditor’s agent or the sheriff of the county. If he had died after the action had been begun, it would not have been necessary to have revived it. His successor in office, or the sheriff, would merely have been authorized to have controlled the proceedings so far as the statute permitted such control'; nor could the resignation of the auditor’s agent have terminated the action. The proceeding is for the State, and on its behalf, and on behalf of the county, to require the listing of property which the taxpayer and taxing- officers have omitted.
Appellant suffered judgment by default in the county court. Upon appeal to the circuit court, he did not file an answer controverting the allegations of the statement filed by the auditor’s agent, nor did he make or offer any defense to the merits of the case. Up to this time the allegation that he had omitted to list his property for taxation for the years mentioned stands confessed. The circuit court dismissed the appeal, which left the judgment of the county court taxing the property in effect. We think it would have been more regular, upon the state of the rec-
No showing having been made against the right of the State to have the omitted property assessed, the judgment is affirmed.
Petition for rehearing by appellant overruled.