Stahmer v. State, 125 Ala. 72

125 Ala. 72 | Ala. | 1899

HANALSON, J.

The defendant introduced several witnesses to testify as to the value of his property, the assessment-of which for taxation it. was • proposed by this proceeding to raise. The witness, Charles Schultes, testified that the value of the particular estate proposed to be raised was about $600, which was.$i2Í30 below what the. property was given in and valued at in- the beginning, and $400 below its Amine as fixed by. the Board of Equalization. The solicitor -asked the witness on cross-examination : “Has your property also been raised?” The defendant objected, and the court -stated, that the evidence called for was admissible only as affecting the witness’ credibility, and -overruling the objection allowed the witness, for the purpose to which it was limited, to state that his property had been raised also. For the purpose the evidence was alloAved, there Avas no error in its admission. It had a tendency to shoAv bias on the part of the witness. — Lodge v. The State, 122 Ala. 97; 25 So. Rep. 210.

The property taxed consisted of eleven town lots, the numbers of which were set doAvn on the return of the assessment, and they were assessed in bulk at $800. Defendant’s Avitness, Johnson, testified that the lots Avere worth about $800. On cross-examination, the solicitor asked him, and the court allowed him to answer against the. objection of defendant, what was the value of a house that was on one of the lots, and the value of the lots separately.. In this the court did not commit error. This Avas a means of -testing the correctness and value of the witness’ testimony in fixing the vaiue of all the lots in bulk. . . :

The assessment list of the tax assessor returned to the board, which was introduced in evidence, showing the number and value of the lots for assessment, Avas signed and SAVorn to by the defendant. The defendant, on his examination in chief testified the lots were worth about .$650. The solicitor was allowed to ask him on the. cross: “Did yon not give in this property yourself at $800?” He swore wlien he made the . return, that he would return his property “at its market value on the 1 Oct. preceding.”’ He answered: “I did.” . There was no error here. It was, a very proper way to test the witness’ credibility. . . ' .' '

, 'The jury returned their, verdict: “We the jury assess the Amine of defendant’s property on the 1st day of October, 18.96, at one thousand dollars.”' The judgment rendered by the court Avas, after proper predicate therefor: “It is therefore, considered by this court, (that) the lots so described i,n the proceedings be assessed at a valuation' of $.1,000, instead of $800 as assessed by the tax assessor of Oullman county; and it appearing to the satisfaction of the court, that this is a proceeding instituted by the tax commissioner of Oullman county, it is ordered that defendant pay in addition .to the taxes caused- by this increased valuation, ten per cent as commissioner’s. fees.” It is insisted that the court’ had no right to receive the Arerdict of the jury and enter judgment on the same, upon, the alleged ground that the verdict was altogether irresponsive to the issue; that the assessment list had on it personal property returned for taxation, as Avell as the eleven lots, and the jury mistook .the issue and. assessed the valuation of defendant’s property - instead of Ms lots at $1,000. This is an entire misapprehension of the issue tried and the Arerdict thereon. . The issue made up and tendered in the complaint filed.by the solicitor Avas, that these lots in the city of .Cullman were returned and assessed at'$800, when the same were justly Avorth, to-wit, .the sum of $1,200. There was no complaint that any of the personal property on the list was.undervalued.in the assessment. The verdict was, therefore, responsive to the issue. — Sullivan v. The State, 110 Ala. 95. The word property therein. used, means, necessarily, the eleven lots of land, and nothing else.

It is said again’ that the circuit court erred in taxing the defendant with a tax commissioner’s fee of ten per cent. That part of the judgment is: “It is ordered that the defendant pay in addition to the taxes caused by this increased valuation, ten per cent, as commissioner’s fees.” Ten per cent, on wlxat is not stated, and whether it was intended to be on the value of the whole property —$1,000—as ascertained by the jury, or that per Cent, on the amount of the tax arising from the $200 additional assessment, the judgment does not suggest.' The laiv provides (section 11 of the act “To provide for the more efficient assessment and collection of taxes in the State of Alabama,” approved Feb’y 3rd, 1897, (Acts, 1896-97, p. 521), that the “tax commissioners shall receive ten per centum of the tax arising from such additional assessment,” but it does not provide that this ten per cent shall be paid ~by a defendant, in addition to the tax arising from the additional assessment. In taxing the defendant with the commissioner’s fee the court was in error; but it is not such error as for which the cause should be reversed, as it may be here corrected. It is accordingly ordered that that part of 'said judgment entry which reads as follows: “And it appearing to the satisfaction of the court, that this is a proceeding instituted by the tax commissioner of Cullman county, it is ordered that the defendant pay in addition to the taxes caused by this increased valuation, ten per cent, as commissioner’s fee,” be and the same is hereby stricken therefrom.

It is insisted again, that, the court erroneously rendered judgment against the defendant for the costs of the proceeding in the court below and in the circuit court. It appears the board of revenue raised the defendant’s assessment $400, ever the $800 at which it was given in by him to the assessor. The State on cross-examination of defendant as a witness, brought out the fact, that he agreed, in order to have peace and not be “bothered” with the courts, to let the county tax commissioner raise his assessment to $1,000, and when the matter came before the Board of Revenue, he agreed to let them raise it to that amount. The defendant, however, contested the assessment before the board, and gave security in double the amount of the tax and the probable cost, conditioned to prosecute* the appeal to effect and pay such judgment as the court to which the appeal was taken might render. This bond is not set out in the transcript, but it is stated that the appeal bond was filed, and we must presume it was made according to the provisions of the statute (Acts, 1894-95, p. 1192, § 33). The Code — section 1325 — provides that the successful party in all civil actions is entitled to full costs; and the State having succeeded in the litigation, it Avas not contrary to the statute to tax the defendant Avith the costs.

We find no error in the refusal of the court to give charge 1 requested by defendant, nor in the parts of the general charge of the court, Avhich Avere excepted to by him. It appears that this Avas not a proceeding on appeal to the circuit court to correct the action of the Board of Equalization of the county for raising the assessment of defendant’s property as made by the tax assessor, AAdiich he seeks to review, but to correct the assessment as made by the tax commissioner of the county. In a proceeding on appeal to correct the action of the Board of Equalization in the trial in the circuit court in a case of the first named character, we have heretofore held, that the assessment of the tax assessor should be regarded as prima facie correct, wholly regardless of the Board’s action. — Sullivan v. The State, 110 Ala. 95. Biit, when the assessment has been made by the tax commissioner as here, the assessment by him supersedes that of the assessor, and the assessment by the latter, when introduced in evidence would not be entitled to this prima facie presumption of correctness, and the principle invoked in the case referred to, is without application. The álleged errors in the other charges refused are not insisted on in argument.

Let the judgment of the court beloAv as here corrected be affirmed.

Affirmed.