129 Wis. 180 | Wis. | 1906
This court took original jurisdiction in this case because it involved the validity of ch. 44, Laws of
The question, sharply presented, is whether the county court had such authority and jurisdiction. As indicated, the deceased was a large stockholder in the relator at the time of his death. The state contends that it became essential for the county court “to ascertain the fair market value” of such stock in order “to determine the inheritance tax” that the •estate was required to pay, and the state concedes that “this is practically the only property in the state concerning which there is controversy as to the proper valuation.” The relator concedes, in the language of the act, that “the tax so imposed” is to “be upon the clear market value of such property.” Sec. 1, subd. 6. The relator also concedes that such value is to he determined either by the appraiser, appointed
“Or the county court without appointing an appraiser, upon giving twenty days’ notice ... of the time and place of hearing, may at the time so fixed hear evidence and determine the cash value of such estate and the amount of tax to-which the same is liable.” Sec. 15.
Another section of the act declares:
“The county court . . . shall have jurisdiction to hear and determine all questions arising under the provisions of this act, and to do any act in relation thereto authorized by law to-be done by a county court in other matters or proceedings coming within its jurisdiction.” Sec. 12.
The language of the act seems to authorize the county court,, with or without the appointment of an appraiser, to ascertain and determine such value of said estate, and for that purpose compel the attendance of witnesses and the taking of their testimony under oath. This seems to be conceded by the-¿relator.
The mere fact that competent, material, and relevant testimony may be contained in the books of a third party or a corporation, and that it is inconvenient to produce them in court,.
Tbe relator contends that tbe county court bad no power to compel tbe production of its private books and papers for inspection. Tbe mere fact that tbe stock in question was issued by the relator did not make it a party to the controversy in respect to its value. That controversy was between tbe executors of tbe estate and tbe state of Wisconsin. Since tbe relator was not a party to that controversy, it is very obvious that tbe case presented does not come within tbe statutes requiring a party to produce books, papers, and documents, or copies thereof, or to give permission to take such copies. Secs. 4096, 4183 et seq., Stats. 1898. Nor is there any claim that such books and papers of tbe relator contain any entries or admissions made by the deceased respecting such value of tbe stock in question or otherwise. Sec. 4189, Stats. 1898. See State Bank v. Brown, 165 N. Y. 216, 59 N. E. 1. True, tbe secretary of state alleges, upon information and belief, that there is “no other way of getting at tbe fair market value of said stock'than by examining tbe books of said relator.” But be fails to show bow that way would be effectual; besides, such allegation was put in issue by tbe relator, and there is no proof nor showing of any facts in support of it. Whatever entries, statements, or menioranda may be contained in such books and papers must be regarded as having been put therein by tbe officers or agents of tbe relator and for its private use or benefit. Tbe question recurs- whether tbe relator is compellable to produce such private entries, statements, and memoranda for inspection in tbe controversy between tbe other parties mentioned.
In an English case, cited by counsel for tbe state, tbe court refused to compel tbe secretary and solicitor of a railway company to produce certain books and documents, because tbe 'di
“The books of a' bank, not kept by either of the parties to an action, nor relating to transactions between them, but referring solely to transactions between the defendant and the bank, are not competent evidence, between the parties, to show the amount of paper which ha’s been discounted by the bank for the defendant and the number of notes so discounted and renewed. And a statement made up from such books is equally incompetent.” Perrine v. Hotchkiss, 58 Barb. 77.
To the same effect: Isham v. Schafer, 60 Barb. 317; State Bank v. Brown, 165 N. Y. 216, 59 N. E. 1, 53 L. E. A. 513. In the note to this last citation it is said:
“The general rule is that a person’s books of account cannot be used as evidence upon issues between third persons; that entries in such books as to such third persons are res inter alios acta and cannot be used against persons not parties to them.”
To the same effect: 2 Ency. of Ev. 667; Kerns v. McKean, 65 Cal. 411, 4 Pac. 404; Treat v. Barber, 7 Conn. 274; Mercier v. Copelan, 73 Ga. 636; Powers v. H. & L. R. Co. 33 Ohio St. 429; Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S. W. 975; Holt v. Pie, 120 Pa. St. 425, 14 Atl. 389; Minton v. Underwood L. Co. 79 Wis. 646, 48 N. W. 857. So, in a case cited by counsel for the state it was held that:
“The court will not grant a motion to compel the opening of the records of a corporation not a party to the suit, but whose records,' it is claimed, would disclose something of importance to the litigation.” Henry v. Travelers’ Ins. Co. 35 Fed. 15.
In the absence of circumstances not present here, such supposed entries and statements made in the books, papers, and documents of the relator by its officers or agents have no more probative force as evidence in court, in the controversy be
Counsel for the relator claim that such rules should be applied with more stringency in a case where, as here, the county court was acting as an appraiser and engaged in securing witnesses and hearing evidence as to the value of the stock in question. ’ In support of such contention counsel cite a casein New York, where, “under the provisions of the collateral inheritance act/’ it was held:
“In reference to fixing the value of property for the.purpose of assessment and taxation, the surrogate is made the assessing and taxing officer and as such is the representative of the state.” Estate of Wolfe, 137 N. Y. 205, 33 N. E. 156. See, also, Estate of Ullmann, 137 N. Y. 403, 407, 33 N. E. 480; Amherst College v. Ritch, 151 N. Y. 282, 343, 45 N. E. 876.
But in another case in that state, cited by the same counsel, it is said by the court:
“The statute does not confer jurisdiction upon the surrogate’s court as such, in the first instance, to assess and determine the tax. The surrogate, as a taxing officer, after the-appraiser has appraised the property, enters his order fixing the tax ‘as of course,’ and thereafter any person aggrieved may appeal therefrom to the surrogate. ... It is clear that the initial steps which the statute requires the surrogates to-take are those of taxing officers, and not of judges.” Weston v. Goodrich, 86 Hun, 194, 199, 200, 33 N. Y. Supp. 382.
But, as indicated, our ch. 44, Laws of 1903, authorizes the-county court, with or without the appointment of an appraiser, to ascertain and determine the value of the estate and to compel the attendance of witnesses and the taking of their testimony under oath. But there is nothing in the statutes authorizing the county court, whether acting as a judicial
Upon the case presented and the rules of procedure sanctioned by this court, the relator is entitled to a writ of prohibition. State ex rel. Att’y Gen. v. Circuit Judge, 97 Wis. 1, 15, 72 N. W. 193; State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046. No costs allowed, except the relator must pay the fees of the clerk of this court.
By the Court. — The peremptory writ of prohibition is hereby awarded as prayed by the relator.