Weaver v. State, 39 Ala. 535

Weaver v. State

39 Ala. 535 | Ala. | 1865

A. J. WALKER, C. J.

Tbe complainant, having been assessed witb a tax on $100,000 boarded, applied to tbe court of county commissioners to correct tbe assessment. Tbat court, overruling the appbeation to be absolved entirely from tbe assessed tax on money boarded, held that tbe assessor bad committed an error in bis determination of tbe amount to be taxed, and adjudged tbat $62,728 was tbe correct amount to be assessed. Tbe judgment of tbe court of county commissioners was carried by certiorari to tbe *539circuit court for revision, and was by that court affirmed. We tbink tbe court of county commissioners bad authority to revise the assessment, and ascertain whether there was error in it, and by its judgment define that error. Whether it had authority to go farther, and correct the error, it is not necessary here to decide. The law from which we draw our conclusion is the 14th section of the act of 9th December, 1862, in the words following: “ It shall be the duty of the commissioners’ court of the several counties to revise and compare the assessment list; and if, in their opinion, there is any omission, discrepancy, irregularity, or error, in the assessment or valuation of property, profits, or salaries, they, shall, so far as to any supposed omission, discrepancy, irregularity, or error, direct a re-assessment to be made, either by the assessor, or such other person or persons as they may deem most suitable and competent.” If the court exceeded its authority, as bestowed by this statute, it was in correcting the error itself, instead of directing it to be done. This was, in this case, an immaterial matter; for the nature of the error is such, that to point it out made the correction of it a mere ministerial duty. We leave out of view, in determining the question of authority or jurisdiction, sections 440 and 441 of the Code; because, in referring the authority to them, we encounter the question, whether a court, convened at any other time than the second Monday in January, can exercise the powers therein bestowed; and this question we wish to avoid, leaving it open and undecided.

We have entertained doubts whether the act of 1862 refers to assessments made under the previous laws ; but we think the better opinion is that it does, and we so decide, without argument, as the counsel on both sides agree that such position is correct.

[2.] What we have said brings us to the conclusión, that the judgment of the court of county commissioners, defining the extent of the error in the assessment, was the judgment of a court of competent jurisdiction, which was afterwards affirmed. This judgment was rendered in a proceeding commenced and prosecuted by the complainant himself, and binds him, unless it is reversed in a revising *540court, or is set aside by the chancery court, upon some ground recognized in that forum. The bill is framed with a view to this position, and alleges that the facts, as recited in the judgment-entry of the court of county commissioners as the predicate of its decision, do not represent the case as made before that court fully or correctly; and that therefore the complainant could not successfully revise the judgment in the circuit court.

We are not sure that the diversity between the facts as alleged in the complainant’s bill, and as recited by the judgment-entry, is a material, matter. But let it be conceded that it is; the complainant then occupies the position of one against whom a judgment has been rendered, in which there was error available in a court of law, and of which he was prevented from availing himself by the failure of the court which rendered the judgment to recite fully and correctly the facts upon which its judgment was founded. The complainant can come into chancery, to set aside the judgment, because he was prevented from obtaining relief at law by the cause above stated, only when the prevention was the result of “ fraud, accident, or the act of the opposite party, unmixed with fault or neglect on Ms part.” McCollum v. Prewitt, 37 Ala, 573; French v. Garner, 7 Porter, 549. The complainant is not alleged by his bill to have called the attention of the court of county commissioners, during its sitting, to its defective statement of the facts, and asked a correction or amendment of that statement, or to have presented, by way of bill of exceptions or otherwise, a correct statement of those facts. On the contrary, he states in his bill, that he was ignorant that the statement of facts was incorrect and defective, until the cause came up in the circuit court. With these things, presented in the bill, we cannot say that the prevention of a fair revision in the circuit court was “ unmixed with fault or neglect” on the part of the complainant.—Stein v. Burden, 30 Ala. 270.

The complainant alleges the discovery of some new facts after the judgment was rendered. If those facts were at all material, the failure to discover was the result of the most obvious inattention and neglect.

Whatever may have been the rights of the complainant *541in the court of law, be bas alleged no sufficient reason for coming into chancery to set aside the judgment against him in the court of county commissioners. So far as the action of the circuit court is concerned, if it erred, the remedy was an appeal to this court; and no excuse is averred for the failure to resort to it. The bill contained no equity, and the chancellor was right in dismissing it.

The decree is affirmed.