29 So. 2d 274 | Miss. | 1947
Lead Opinion
This judicial controversy originated when, allegedly, "on the 23rd day of June 1945 the plaintiff was improperly charged with and required to pay additional sales tax for the years 1937 and 1938" (quoting from the declaration), by the State Tax Commission. Appellant paid the amount assessed, and thereafter filed in the Circuit Court of Harrison County, wherein he resided, this action to recover the amount so paid. The action was based on the authority of Section 8, Chapter 113, Laws 1938, Section 10122, Code 1942, providing that "Any person improperly charged with any tax and required to pay the same, may recover the amount paid, together with interest, in any proper action or suit against the Commissioner, and the circuit court of the county in which the taxpayer resides or is located shall have original jurisdiction of any action to cover any tax improperly collected. It shall not be necessary for the taxpayer to protest against the payment of the tax or to make any demand to have the same refunded in order to maintain such suit."
Appellee pleaded res judicata in defense of the action, exhibiting with the plea, the original order of the State Tax Commission; the final judgment of the Circuit Court of Hinds County; the judgment of this Court affirming the Hinds County Circuit Court judgment; the per curiam of the Supreme Court of the United States dismissing the appeal there from this Court, and denying certiorari, for want of jurisdiction; the decree of this Court affirming that of the Chancery Court of Hinds County; and the per curiam of the Supreme Court of the United States dismissing the appeal from this Court, and denying certiorari, because the decree of this Court was based upon a non-federal ground. *494
It will be noted, therefore, that this matter has been twice before us. Viator v. State Tax Commission,
The appellant filed a replication, contesting the defense of res judicata. On the pleadings the Circuit Court of Harrison County entered a judgment for appellee. Nothing was before the trial court other than the pleadings, including the certified copies of the orders and judgments, supra, exhibited with appellee's plea of res judicata, and the opinion of this Court, unaccompanied by its record, in
We are of the opinion that in so holding, on what was before the Court and forming the foundation of its judgment, the trial court was in error. Such matter was inadequate to form a sufficient basis to sustain the application of the doctrine of res judicata. This doctrine extends to the judgments of all courts, 30 Am. Jur. Sec. 163, Judgments, p. 909, but is not to be predicated upon administrative action, ibidem, Sec. 164, p. 909. The statute, Sec. 10122, Code 1942, makes the order of the Tax Commission not finally conclusive, and does not require protest against payment, or demand for refund, before the aggrieved taxpayer may file an action to recover a tax with which he was improperly charged. This statute *495
prevents the application, on the issue of res judicata, of the part of Sec. 164, same topic, 30 Am. Jur., Judgments, p. 909, announcing that "it is clear that the doctrine of res judicata applies to a judgment rendered by a court upon a review of a decision made by an administrative body," unless such judgment were a final judgment rendered by a court of competent jurisdiction on the merits. Only such a judgment can operate as a conclusive determination of a cause of action. Section 172, 30 Am. Jur. 914; Coffman v. Brown, 7 Smedes M. 125,
Parties are precluded from relitigating the same facts, regardless of the form of action. Sec. 178, 30 Am. Jur. 920; Fair et al. v. Dickerson,
It is generally held that the existence and contents of a judgment, sought to be made available as a basis for the application of the doctrine of res judicata, must be proved by offering the record, or a copy thereof, in evidence, Sec. 273, 30 Am. Jur. p. 993. One reason for the rule is that the judgments of trial courts are subject to review, and that in order to review them, a record of the proceedings must be made, for the appellate court, which cannot take judicial notice of the records. Divide Creek Irrigation District v. Hollingsworth, 10 Cir.,
This does not mean that in considering previous decisions of this Court, the facts therein set forth may not be compared or contrasted with the facts of a case later being tried, to determine whether there is enough analogy to constitute precedent or stare decisis, law of the case, *497 relevancy, and so on. Such procedure has no similarity to a resort to the record of facts in a previous case, in order to supply out of them, necessary facts absent from the record of a case, where it is sought to apply the doctrine of res judicata.
Furthermore, we have said that where the record of a decree of a court of competent jurisdiction is offered in evidence, every presumption is to be indulged as to the correctness of the facts on which it is founded, and which appear of record. Hardy v. Gholson,
Under the above authorities we have concluded that we cannot determine from the mere pleadings, exhibited copies of the judgments, and our opinion, supra, whether or not the merits of the controversy between the parties here were, or could have been, properly litigated in the other trials, appealed to this Court from the Circuit and Chancery Courts of Hinds County, respectively, supra. And whether or not there was present, at the time, competent jurisdiction to try the cases on the merits of the controversy, or, if so, whether or not this controversy was actually tried on the merits. See Stone, Chairman of State Tax Commission, v. Kerr,
This situation is not benefited, in our judgment, by a stipulation in the record agreeing that the opinion of this Court in
In addition to the other authorities on the subject set out, supra, it was held by this Court in Dogan et al. v. Brown, Ex'r,
Section 10122, Code 1942, existing at the time the opinion in
Therefore, the judgment of the circuit court is reversed and the cause remanded for further proceedings not inconsistent with these views.
Reversed and remanded.
Dissenting Opinion
And the text first above cited continues further: "It is clear that the doctrine of res adjudicata applies to a judgment rendered by a court upon a review of a decision made by an administrative body," citing in support thereof State Corp. Commission v. Wichita Gas Co.,
But it is argued that our previous adjudications were not upon the full facts, — that the courts did not have before them the additional facts which appellant now proposes to show in this case, — the fourth which has been brought by him. The opinion of this Court in the first *501 case, which by stipulation was made a part of the record in this case, and is thereby made equal to undisputed proof of what is factually stated therein, recites that "the assessment here made by the Chairman of the State Tax Commision . . . became thereby prima facie correct, and the taxpayer was given an opportunity both by the Chairman of the Commission and by the Tax Commission itself to negative by evidence the facts on which the assessment was based."
Although, as thus shown, the Court did not have before it in the first case the full facts which appellant alleges he can now show, the opinion and the facts therein stated do show that appellant had allowed the proceedings before the Tax Commission to progress to the point where upon the facts a prima facie case had been made out against him. Had he then or later without taking the proceedings directly to court — had he then paid the amount demanded, he could have brought his action to recover the payment, and no plea of res adjudicata would have been available. But what the taxpayer did after the prima facie case had been developed against him, good unless met with facts, was to take it to a judicial court, which put him, by his own election, in the same position as if the matter had been a court proceeding all the while and he had rested with meeting the prima case made out against him.
It was precisely the doctrines above stated which this Court recognized in the second appeal brought here by the taxpayer on this same matter, to wit, Viator v. Edwins, Sheriff,
The above quoted language is therefore not only the law of this case, but is so much so that it could be simply repeated here in haec verba as all that is necessary to dispose of this last case, because here the contentions are identical with those made in both the two cases already decided, and is merely another "attempt to show what might have been shown in the former cause."
When the facts in a case on a subsequent appeal and the parties are the same, in person or in privity, or when the facts offered to be shown in the subsequent appeal are the same as those offered in the preceding appeal, as is the case now before us, then obviously what was held in the preceding appeal is the law of the case, binding on the court as well as on the parties, and this remains true even though the subsequent appeals were brought about by other form of action. 21 C.J.S., Courts, Sec. 195, p. 340, and the cases there cited.
And, as to the argument that Section 10122, Code 1942, allows an action against the Tax Commission as an exclusive remedy for any tax which, as alleged, has been improperly charged and paid and this without regard to anything else which has transpired; in otherwords, regardless of the fact that by previous proceedings the same matters presented by the later action brought under the cited section have been considered and adjudicated, — an argument with which the controlling opinion apparently *503
agrees, — it is necessary only to note that there are no words in that statute which expressly abrogate the common-law doctrines either as to res adjudicata or the law of the case. In 50 Am. Jur. pp. 340-342, it is said that "where a contrary intent is not manifest, clear, obvious, or inescapable, or explicitly and unmistakably indicated by direct, peremptory, and unambiguous language, or where the language of the statute is in the affirmative without any negative, express or implied, it is presumed that no change in the common law was intended and the statute is generally interpreted as affecting no such change. Statutes are not deemed to change a common law rule by implication unless the intention to do so is obvious." And see what we said in our latest case precisely to the same effect, Sanders v. Neely,
It is my conclusion, therefore, that the judgment should be affirmed.
Dissenting Opinion
When the Tax Commission rendered its order approving the assessment here made against the appellant, he had the choice of two remedies, (1) to pay the tax assessed against him and sue for its recovery under Section 10122, Code 1942, or (2) without paying the tax, to have that order reviewed and, if erroneous, set aside by the Circuit Court of Hinds County by means of a writ of certiorari under Section 1207, Code 1942. He elected to and did proceed under the latter. The inconsistency in the two remedies is that under the first he must pay the tax before instituting an action for its recovery, while under the second he may have the order set aside if erroneous without undergoing the inconvenience of paying the tax thereby depriving himself of the use of the money required for that purpose. Section 10122, Code 1942, does not contemplate that a taxpayer before resorting to it may harass the State Tax Commission and its Chairman with lawsuits and appeals, as was here done, before at long last complying with the provisions of the Section and then instituting an action for the recovery of the taxes paid.
While the appellees' plea does not specifically refer to the doctrine of election of remedies, it is implicit therein and should be here applied. The judgment of the court below should be affirmed.
Dissenting Opinion
It now appears that all the majority of the Court intended, by its former judgment herein, was to reverse and remand the case, for the reason that the appellee's plea did not disclose sufficient of what occurred in the Circuit Court of Hinds County for the determination of whether the judgment there rendered was res judicata here. I think that plea was sufficient, for it discloses that the record made by the State Tax Commission in the assessment here complained of was removed to the Hinds County Circuit Court by a writ of certiorari under Sec. 1207, Code 1942, resulting in a judgment affirming the order entered by the State Tax Commission making the assessment. Attached as exhibits to this plea were copies of the record of the State Tax Commission making the assessment, and of the judgment of the Hinds County Circuit Court affirming it.
Griffith, J., concurs in this opinion.
Addendum
In the present proceedings, Viator, in seven paragraphs, set out a number of reasons why he did not owe the tax, and as grounds for recovering the amount he had paid. We quote, for purpose of illustration, one paragraph from his declaration:
"2. The two additional sales tax assessments made against him, for the years 1937 and 1938, are null and void; they were made without jurisdiction, without statutory authority, contrary to the reasons given in Registered Demand, without evidence, contrary to the indisputable character of evidence offered by taxpayer, without the hearing provided by statute, without a report in writing setting forth a review of the cause and the essential facts of the matter, without a finding of basic fact, supported by evidence, and by comparison with the business of other retail merchants done in the year 1939, one and two years, respectively, later than the period for which taxpayer was attempted to be assessed, *506 and by making the additional assessments purposeively (sic) high to take care whatever the Field representatives of the Commission might be able to find." Other questions of fact and legal propositions are raised in the declaration. We will apply to this situation the allegations of the plea.
It first exhibits the order of the Commission. That is not sufficient, first, because the written protest apparently filed by the taxpayer, setting out his contention of non-liability, is not exhibited, nor are the grounds thereof set out in the plea; and, second, because the doctrine of res adjudicata is not to be predicated upon administrative action. 30 Am. Jur. p. 909, Sec. 164.
Next the plea invokes the certiorari proceeding in the circuit court of Hinds County. No statement of fact is made in the plea as to the issues involved. It simply exhibts a copy of the judgment of the court, which order says the court had considered the matter and adjudged Viator liable for the tax.
The plea then sets up the appeal to this Court. It says this Court affirmed the lower court and exhibited a copy of the judgment entered here. The opinion of this Court was admitted by agreement. In that opinion this Court expressly stated that under our practice the court to which a case has been removed by certiorari is confined to an examination of the questions of law arising or appearing on the face of the record. No controversial questions of fact were adjudicated.
The plea then exhibits a copy of the order of the Supreme Court of the United States upon the appeal to that court. That order merely says the appeal was dismissed because no federal question was involved.
Next the plea refers to an injunction proceeding in the chancery court of Harrison County. There is no statement of the issues there involved.
It says that case was appealed to this Court. It sets up only the order of this Court, which simply finds there was no error in the chancery court. It states that case *507 was appealed to the Supreme Court of the United States and exhibits the order of that Court, which says the appeal was dismissed because no federal question was involved.
It then makes reference to a proceeding in the Federal District Court, but does not state what issues and questions were involved.
We believe it is obvious that this plea did not show the issues and questions involved in the former proceedings and their adjudication by courts having jurisdiction thereof so as to demonstrate that the issues and questions now presented have been adjudicated, especially in view of the fact that the plaintiff filed a replication thereto, and the only proof introduced was opinion of this Court in the certiorari proceeding to which reference has been made above.
We deem it unnecessary for us to undertake to prescribe the form of a plea of res adjudicata. It is necessary that it set out as facts and not as conclusions of the pleader, the issues and questions involved in the former proceeding; show that the court had jurisdiction of the parties and the subject matter, and what the judgment of the court was upon such issues. Naturally, the most accuate way to do that is to exhibit copies of the pleadings and of the judgment, as well as copy of the service of process on defendant, showing him to be properly in court, unless this be shown by the judgment. However, it is not absolutely essential that such copies be exhibited. It is said in 9 Enc. of Pleading and Prac., p. 625 b, "In pleading a former decision as an estoppel, the former record should be set out, or made part of the pleadings; or at least so much of it as will enable the court to determine whether the same question has been adjudicated in the former suit. But it is unnecessary to set forth in detail the pleadings in the former suit."
The annotator in 120 A.L.R. at page 150, makes this observation: "A sufficient pleading setting up an estoppel by a prior adjudication must show that the *508
earlier judgment was rendered upon the merits of the case, . . ." citing Miller v. Buckley,
In 30 Am. Jur. p. 993, Par. 274, it is said: "Ordinarily, questions as to the effect of judgments as res judicata cannot be decided from the judgment alone, but must be determined by the aid of the entire record, and the general rule is that proof of the whole record must be introduced where a party intends to avail himself of a judgment as an adjudication on the subject matter, particularly where it is material to show the premises and grounds on which the judgment is based, or the jurisdiction of the court rendering the judgment. . . ."
For what is meant by record see Dogan v. Brown,
Suggestion of error overruled.