Whittle v. City of Hattiesburg

96 So. 741 | Miss. | 1923

Anderson, J.,

delivered the opinion of the court.

This is an appeal by Mrs. D. M. Whittle from a judgment of the circuit court of Forrest county affirming an order on appeal from the mayor and board of commissioners of the city of Hattiesburg acting as a board of equalization increasing the assessment of appellant’s property in said city as made by the assessor. Appellant’s property consisted of real estate in the city of Hattiesburg. It was assessed for municipal taxes at five thousand one hundred dollars. At the equalization meeting of the mayor and board of commissioners of the city held in September and October, 1922, for the purpose of equalizing the municipal assesments for that year, appellant’s assessment was increased from the amount returned by the assessor, five thousand, one hundred dollars, to five thousand, three hundred dollars. From that order of the municipal authorities appellant prosecuted an appeal to the circuit court of Forrest county. There was a jury impaneled to try the case. Appellant insisted that appellee, the city of Hattiesburg, should assume the burden of proof. The court ruled that the burden of proof was on appellant. Appellant introduced copies of the records certified up by the city clerk under section 81, Code of 1906, section 61, Hemingway’s Code, and rested. Appellee declined to introduce.any evidence. Each party therefore proceeded on the idea that the burden of proof was on the opposite party. Appellant requested a directed verdict in her favor, as also did appellee; that of appellee was granted, and thereupon judgment was entered by the circuit court fixing appellant’s assessment at five thousand three hundred dollars, the amount at which it was fixed by the municipal equalization board. ' !

The sole question therefore is: On whom was the burden of proof in the circuit court trial? The appeal was taken under section 81, Code of 1906, section 61 Hemingway’s Code, which provides for an appeal in this character of case and declares that in the circuit court “the controversy shall be tried anew.” To try a cause anew means to try it as if it never had been tried before. It means in this case that the judgment appealed from is wiped out and the cause stands in the circuit court for trial exactly like it did before the equalization board when that board sought to raise the assessment of appellant’s property as returned by the assessor. There could be no trial anew in the circuit court if the judgment or order of the equalization board is to be treated as prima facie correct. If it is to operate as a judgment against the taxpayer who must overturn it in order to succeed, then there is no trial anew in the sense of the statute. The statute in question does not contemplate that the circuit court shall in such cases be a court of appeal in^the ordinary sense of such courts. The purpose is to simply authorize the transfer of the record in the cause from the municipal authorities, to the circuit court for the purposes of a trial de novo. The judgment appealed from stands exactly like a judgment of a justice of the peace in a. cause appealed to the circuit court. In such a case the judgment of the justice of the peace is ignored as evidence in the cause for the reason the statute authorizing appeals from such judgments provides, as does this, for a trial de novo. How such a case could be tried anew in the circuit court so long as the judgment appealed from must stand as prima facie correct is hardly conceivable. A trial anew in the present case simply means that the court shall approach the case as the equalization board did, on the evidence for and against, as to whether the valuation fixed by the assessor should be increased, treating the assessor’s valuation as prima facie correct and not the valuation of the equalization board.

If authority were needed to sustain this view, Sullivan v. State, 110 Ala. 95, 20 So. 452, is squarely in point. There the statute involved was substantially the same as the statute here involved. In their' controlling aspects the facts in that case were the same as the facts in this. The court held, as we have, that on a trial in the circuit court the assessor’s return must be treated as prima facie correct and not the order of the equalization board, and that therefore the burden of proof was on the state in that case to overturn the action of the assessor.

Reversed and remanded.