88 Ky. 135 | Ky. Ct. App. | 1889
DELIVERED THE OPINION OF THE COURT.
The estate of Felix Mercer being in litigation in the Marion Circuit Court, an order was made by it in 1881, placing in the hands of the appellant, and directing him to loan „ out, about twenty thousand dollars left by the decedent. The Commissioner complied with the order, and has since continued to loan it, owing to the right to the fund remaining unsettled, taking notes, therefor, presumably payable to himself. In June, 1885, upon motion of the proper parties, the court granted leave to them to institute suit in the Marion county court to compel the commissioner to list the fund for State and county taxation for the years 1881 to 1885 inclusive; and the order further provided that the commissioner should, out of the fund, pay such sums as might be adjudged for these purposes. It does not appear that the estate had ever been listed for taxation, or that any taxes had ever been paid upon it for the years named. After the granting of this leave, the sheriff: of the county reported in writing to its county court clerk, the appellant as delinquent, in having failed to list said fund or pay taxes upon it, and thereupon the latter officer issued a summons against the commissioner to appear before the county court at a time named, and show cause, if any existed, why the estate in his hands should not be listed for-the years above named for county taxation.
A demurrer to the proceeding having been over
It is contended, first, that there is no law warranting such a proceeding ; that, under the statute, a delinquent can only be proceeded against for a fine and a triple tax, and that a listing can only be compelled, if at all, by means of this penalty. It was, however, settled otherwise in the case of the Louisville &
The offending in such case is confined to the mere failure to list, and a summons under said section need charge no more. This was substantially done in that issued against the appellant, because he was required to show cause, if any existed, why the estate should not be listed.
It is a general rule, that before suit can be brought against a receiver, leave of the court by which he was appointed must be obtained. This is because one court should not be allowed to take the property or fund already properly under the control of another court away from it. To do so would be a disregard of the rights of those already contending over the estate, and create a conflict of jurisdiction injurious to public interests and individual right. (Barton v. Barbour, 104 U. S. 126.) There was no necessity, however, in this instance for a resort to another forum. It is true that under our law the county court is the only power which can direct the listing of property for taxation which has been omitted by the assessor. Here, however, was a fund in the hands of the court’s receiver. It was under its control. It was the estate of a decedent of Marion county. The right to it was in litigation. If the averment of the answer that it belonged to Mercer’s heirs, can be considered as one of fact, and
It is contended that it will not do to charge officers, like receivers and sheriffs, with the taxes upon funds, transiently in their hands, and which may happen to be held by them upon the particular day when the owner or possessor is chargeable with the taxes. In this we concur. It would interfere with the proper transaction of business. The case presented is, however, a different one. Here was the estate of a decedent under the control of the court. It was yet to be distributed. It was yet uncertain to whom it belonged, or, at least, what portion, if anything, each heir would finally receive. From the very necessity of the case it was proper for the court to consent that another tribunal might direct its receiver to list the estate in his hands, or, what would • have been preferable, it should itself have directed its officer to go and list it and pay the taxes.
The order of the circuit court granting the leave to another tribunal to pass upon the question of assessment also directed its receiver to .pay any taxes that might be assessed against the fund. This entitled him to a credit, for any sum he might thus pay, and in fact, its judgment upon thé affirmance of the appeal from the county court expressly directs such credit to be given. No loss can, therefore, come to him.
The provisions of chapter 92, of the General Statutes, show it was intended that all property should contribute its proper proportion to the means necessary to support the county and State governments. They were enacted in the spirit of fairness and equality;
It is contended, however, that it belongs either to the personal representative or the heirs ; and that they should have been brought before the county court and the question determined. This would, perhaps, have required the inferior court to determine the very question at issue in the superior tribunal, and which might for years be undetermined. Such a conflict of jurisdiction would .not only be useless, when the taxes could, without injury to any one, be paid out of the fund by the receiver, under the order of the court, but might result in serious .injustice. If the. heir alone were proceeded against, he could very well say, there has been no distribution of the estate. I do not
The estate shonld pay its proper proportion of the public burden in return for its protection under the law ; and unless the mode indicated herein be followed, it and many thousands of dollars situated like it, would escape taxation.
Judgment affirmed.