Commonwealth v. Gold & Stock Telegraph Co.

172 S.W. 1199, 162 Ky. 361, 1915 Ky. LEXIS 147

• Court: Court of Appeals of Kentucky
• Decided: January 27, 1915
• Status: Published

Opinion

Opinion of the Court by

Judge Settle

Beversing.

This appeal from a judgment of the Jefferson Circuit court, chancery branch, first division, which dismissed,, without prejudice and at the cost of the relator, this actiop brought by the latter in the name of the Commonwealth against appellees for the recovery of taxes on property alleged to have been omitted from assessment, is a companion case to those of Commonwealth of Kentucky, by etc., v. Standard Oil Co., 162 Ky., 149, and Commonwealth of Kentucky, by etc., v. Intersouthern Life Ins. Co., etc., 162 Ky., 228, and is controlled by the' opinions therein. It was held by the circuit court in this case, as in those, that the dismissal of the action at the cost of the revenue agent, was authorized by Chapter 15, Article 2, Section 5, page 396, Acts of 1912, because of the failure of the revenue agent to prosecute it with due diligence.

In view of the construction given the act, supra, in Commonwealth v. Ewald Iron Co., 150 Ky., 116, we must hold in this case, as was done in Commonwealth of Kentucky, by etc., v. Standard Oil Co., and Commonwealth of Kentucky, by etc., v. Intersouthern Life Ins. Co., supra, that the judgment appealed from is erroneous.

For the reasons indicated the judgment is reversed and cause remanded for proceedings in conformity with the opinion in the Ewald case.