Commonwealth v. Kosmos Portland Cement Co.

Court of Appeals of Kentucky

Commonwealth v. Kosmos Portland Cement Co.

172 S.W. 954, 162 Ky. 491, 1915 Ky. LEXIS 110

CourtCourt of Appeals of Kentucky

DecidedFebruary 3, 1915

StatusPublished

Cited by2 cases

This text of 172 S.W. 954 (Commonwealth v. Kosmos Portland Cement Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Kosmos Portland Cement Co., 172 S.W. 954, 162 Ky. 491, 1915 Ky. LEXIS 110 (Ky. Ct. App. 1915).

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Opinion

OPINION OF THE COURT BY

CHIEF JUSTICE MlLLER

I? ever sing.

This proceeding was begun under Section 4260 of the Kentucky Statutes by the State Revenue Agent, in the Jefferson County Court, on February 4, 1911, for the purpose of assessing for taxation for the year 1911 certain personal property of the appellee, which appellant alleged was omitted from taxation for that year. The ease was tried in the county court on July 13, 1911, and submitted for judgment, which was entered on August, 21, 1911, assessing two items of small value. The Commonwealth prosecuted an appeal to the Jefferson Circuit Court by filing a transcript of the county court judgment in the circuit court clerk’s office on September 16, 1911. ’When the case was called for trial on September 28, 1912, in the circuit court, the defendant, who is the appellee here, moved the court to dismiss the action without prejudice at the cost of the revenue agent, under the provisions of the Act of 1912, which requires a diligent prosecution of acts of this character. (Acts [492]*4921912, page 396.) This motion was sustained; and the action having been dismissed without prejudice at the cost of the revenue agent, he prosecutes this appeal.

The Act of 1912 was construed in Commonwealth v. Ewald Iron Co., 153 Ky., 116; and, under the interpretation there given to the act, and by excluding the non-juridical days, it is conceded by counsel for appellee, and is unquestionably true, that the judgment of the circuit court in dismissing the action was erroneous. The decision in the Ewald Iron Company case was followed in Commonwealth v. Standard Oil Co., 162 Ky., 149, and again in Commonwealth v. Inter-Southern Life Insurance Co., 162 Ky., 228. Those cases are on all fours with the case at bar, and, under the principle of stare decisis, require a reversal of the judgment of the circuit court.

Judgment reversed and cause remanded for further proceedings.

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OPINION OF THE COURT BY

CHIEF JUSTICE MlLLER

I? ever sing.

This proceeding was begun under Section 4260 of the Kentucky Statutes by the State Revenue Agent, in the Jefferson County Court, on February 4, 1911, for the purpose of assessing for taxation for the year 1911 certain personal property of the appellee, which appellant alleged was omitted from taxation for that year. The ease was tried in the county court on July 13, 1911, and submitted for judgment, which was entered on August, 21, 1911, assessing two items of small value. The Commonwealth prosecuted an appeal to the Jefferson Circuit Court by filing a transcript of the county court judgment in the circuit court clerk’s office on September 16, 1911. ’When the case was called for trial on September 28, 1912, in the circuit court, the defendant, who is the appellee here, moved the court to dismiss the action without prejudice at the cost of the revenue agent, under the provisions of the Act of 1912, which requires a diligent prosecution of acts of this character. (Acts [492]*4921912, page 396.) This motion was sustained; and the action having been dismissed without prejudice at the cost of the revenue agent, he prosecutes this appeal.

The Act of 1912 was construed in Commonwealth v. Ewald Iron Co., 153 Ky., 116; and, under the interpretation there given to the act, and by excluding the non-juridical days, it is conceded by counsel for appellee, and is unquestionably true, that the judgment of the circuit court in dismissing the action was erroneous. The decision in the Ewald Iron Company case was followed in Commonwealth v. Standard Oil Co., 162 Ky., 149, and again in Commonwealth v. Inter-Southern Life Insurance Co., 162 Ky., 228. Those cases are on all fours with the case at bar, and, under the principle of stare decisis, require a reversal of the judgment of the circuit court.

Judgment reversed and cause remanded for further proceedings.

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Bluebook (online)

172 S.W. 954, 162 Ky. 491, 1915 Ky. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kosmos-portland-cement-co-kyctapp-1915.

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