59 Ala. 108 | Ala. | 1877
This is a summary proceeding, under sections 3059-61 of the Revised Code, against a tax-collector,, and the sureties on his official bond, for a failure to pay into the State treasury the amount of State tax collected by the collector in 1870. In proceedings of this character, it is the settled practice to regard the notice of the motion for judgment as serving the double purpose of process and pleading. While as pleading it will be insufficient, unless it shows distinctly every fact on which the plaintiff’s right of agtion, and the liability of the defendant depends, the technical precision and accuracy of a declaration at common law, or of the corresponding pleading, a complaint under the Code is mot required. It is enough, when the liability of the defend
The returns on the notices are not insufficient because they do not state the county of which the officer executing them was sheriff. The courts are bound to know who are the sheriffs of the different counties; and if they were not, the mere statement by a person returning process that he was sheriff of a particular county, would not be evidence of the fact. — Snelgrove v. Br. Bank Mobile, 5 Ala. 295. But the returns on the notices to Gunnells and Boss were insufficient, because without date. Ten days notice to the party against whom judgment is to be rendered, is an essential element of the proceeding. The fact does not appear from the return, and the court was without jurisdiction to proceed to judgment against them. Nor could this deficiency be supplied by parol evidence. The return is the act of the officer, and must be in writing, and complete in itself. It can not rest partly in parol, and partly in writing. When deficient, it
Nor can an inquiry be indulged, and a controversy entertained as to the admissibility of the certificate, or its force as evidence lessened, because of the sources of information on which the Auditor may have acted in making it. The point, of controversy, and of inquiry, is, are the facts stated in it true — has the officer committed the default to which the Auditor certifies. Such default may have been committed, though the evidence on which the Auditor proceeds was. mere hearsay, or his sources of information may not be such.
The duty of the judge of probate in the preparation and certificate of the abstract of assessment, which he was required to forward the Auditor, was also merely clerical. The abstract was intended simply to furnish evidence, which should remain on file in, and become a document of, the Auditor's office, by which the total amount and value of each class of taxable property of the county as shown by the book of assessment, could be ascertained. It was subject to correction at all times by reference to and comparison with the book of assessment, which in the absence of statutory provision, would be the highest and best, and so long as it could be produced, the only evidence of these facts. That an erroneous abstract can not be corrected by the probate judge— that he' and the State are inexorably bound by it — that it is irreparable and irremediable, is a proposition which can not be admitted. The duty of the judge is not performed — his power is not exhausted — until he has certified to the Auditor a complete abstract of the assessment of all real and personal property in his county, showing ■the total amount and value of each class of taxable property contained therein, extended into a column, and the total amount of such sums, so extended. An incomplete abstract — imperfect, erroneous, misleading, because the valuations are not properly extended, or not properly added, is not the abstract it is his duty to furnish, and does not lessen his duty or power to furnish one complete. If several are certified, and a controversy arises as to which is correct, it can be determined by the book of assessment— not by the mere additions and items of aggregate amounts which may be found therein — but by the several entries of taxable property, and its valuation, as assessed to each taxpayer. The abstract when filed in the office of the Auditor, becomes a paper pertaining to the office and is made evidence by the statute. — Code of 1876, §§ 3047-49.
The rulings of the Circuit Court in the admission, and in the refusal to exclude evidence, was in conformity to these views, as was the instruction given the jury to which an exception was reserved. There was no error in the refusal of the instructions requested by the appellant, except that-numbered eight. The burden of proving the cause of action devolves on the plaintiff, when it is denied, and satisfactory evidence must be produced, or he can not recover. This is the substance of the charge, and we can discover no reason for refusing it. The remaining question, relating to the mode of taking and entering judgment, will not probably arise again, and its determination is unnecessary.
For the errors pointed out the judgment must be reversed and the cause remanded.