Riley v. Gaddis

111 So. 739, 146 Miss. 44, 1927 Miss. LEXIS 212

• Court: Mississippi Supreme Court
• Decided: February 28, 1927
• Docket: No. 26318.
• Status: Published

Opinion

ANdbusoN, J.,

delivered the opinion of the court.

■ Appellee filed her petition in the first district of the circuit court of Hinds county against appellant for a mandamus requiring appellant, under the provisions of section 4346, Code of 1906 (section 6980, Hemingway’s-Code, as amended by chapter 196 of the Laws of 1926), to audit and allow, upon the approval of the attorney-general, certain timber taxes paid the state and county by her for the years 1919 and 1920, which appellee alleged in her petition had been erroneously paid. Appellant filed a special plea to the petition, to which special plea appellee demurred. The demurrer was sustained, and, appellant having declined leave to plead further, final judgment was entered in favor of'appellee granting the prayer of her petition.

The petition for mandamus, leaving' off the formal parts and exhibits, follows:

“That George H. Riley is the duly elected, qualified, and acting auditor of public accounts for the state .of 'Mississippi for the term of office beginning on the-day of January, A. D. 1924, and ending on the -— day of January, A. D. 1928.

“That your petitioner, during the years 1917, 1918, and 1919, inclusive, owned and now owns and controls certain timber lands and property in Yazoo county, Miss., hereinafter more specifically referred to, which was duly assessed for taxes for the years 1919 and 1920, and on which land she paid ad valorem taxes in accordance with the assessment thereon, during the years 1919 and 1920, inclusive, to the duly elected, qualified and acting sheriff and tax collector of Yazoo county, Miss.

“That subsequently thereto, and on the 3d day of May, 1924, the state revenue agent found that petitioner was not, during the years aforesaid, separately assessed with the standing timber on the said lands and property on which she had theretofore paid the ad valorem taxes, as aforesaid, to the sheriff and tax collector of Yazoo county, Miss., and the state revenue agent, being fully appraised in the premises, then and there back-assessed your petitioner for the standing timber on the said lands for an ad valorem tax, in addition to the tax already paid on said lands, said additional tax being in the sum of one thousand one hundred fifty-six dollars and twenty-nine cents and the sum of four hundred twenty-seven dollars and fifty cents for the years 19191 and 1920, which amounts he alleged to be due, and demanded of your petitioner therefor, and that, in pursuance to said back assessment, the sheriff and tax collector of Yazoo county, Miss., did, on the 3d day of May, 1924, wrongfully force and compel petitioner to pay and wrongfully collected the aforesaid sums from your petitioner on said back assessment of said standing timber on her said lands, all of which more fully appears by reference to copies' of certified copies of the original tax receipts, No. 85 for one thousand five hundred fifty dollars and fifty cents and No. 87 for five hundred eighty-eight dollars and seventy-five cents duly properly executed by the said sheriff and tax collector, and properly countersigned, and bearing the description of said lands, all of which more fully appears thereon, which said receipts are hereto attached and made a part hereof as Exhibits A and B respectively, hereto.

“That said certified copies of said tax receipts, together with a legal claim or demand for refund of the' said timber taxes wrongfully collected, as aforesaid, was duly, properly, and legally presented to and filed with Geo. D. ■ Biley, auditor of public accounts of the state of Mississippi, on the 21st day of May, A. D. 1926, by petitioner, for auditing, approving, etc., as required by law. That said auditor, in due course, received and considered said claims, but did, on tbe 25th day of May, 1926, return said claims, and declined and refused to audit said claims, approve same, issue his warrant on the state treasurer for ’the state’s pro rata of such refund, and to certify his audit to the secretary of the levee board, and the clerk of the board of supervisors of said county and state for their pro rata of this refund due your petitioner, and said Geo. D. Riley, auditor of public accounts, utterly declined and refused to do all of such things as he is required by law to do in such cases. That your petitioner is without a plain, adequate, and speedy remedy in the ordinary course of law.

“Premises considered, petitioner prays that the proper process issue, returnable to the next regular return day of this court, and, upon hearing’ of this petition, petitioner prays that said matters and things be inquired into, that said claims of petitioner be taken and accepted and adjudged legal demands on the state, county, and levee district, as their interests appear, and to have been wrongfully extorted and collected from petitioner, and petitioner further prays that it be ordered and adjudged that she has made proper and legal demand and claim, as prescribed by law, of the auditor of public accounts, and that said auditor should audit and approve same, issue his warrant on the state treasurer for the state’s part of the refund due, and certify his audit and approval to the county and levee district, as provided by law, for a refund of their respective- parts of this demand, and that a writ of mandamus issue, under the seal of this court, directing and compelling the said Geo. D. Riley, auditor of public accounts to do the matters and things required of him under the law, in such cases, in this state, and petitioner prays for such other and further relief as she may deserve and this petition may warrant.”

Appellant’s special plea to the petition for mandamus, leaving off the formal parts and exhibits, follows:

“And now comes the defendant, George D. Riley, auditor of public accounts, by his attorney, and leave of the court first having been had, files this his special plea No. 1 to the petition for writ of mandamus exhibited against him in the abóve-styled cause, and says actio non, because he says that on the-day of March, 1924, the said plaintiff and the said revenue agent, W. J. Miller, agreed in writing to the assessment of the timber on the lands in question in this suit, and that subsequently on the-day of April, 1924, the board of supervisors of Yazoo county, Miss., acting by and under the authority of the statutes in such case made and provided, after having given notice thereof as required by law, and by agreement of the said plaintiff entered a judgment, which said judgment bach-assessed or confirmed the back assessment of the said standing timber as aforesaid as will be seen by reference to Exhibit A hereto, and that said judgment became final and was not appealed from, and that the taxes levied by said back assessment were paid by the said plaintiff without protest, and the same has now become and is res adjudícala, and the plaintiff, Pauline J. Gaddis, is now estopped from asserting any claim or right to any refund of taxes paid on account of said assessment as aforesaid.”

The trial court took the view that, under the case of Miller v. Copeland’s Estate, 139 Miss. 788, 104 So. 176, appellee had been subjected to double taxation to her standing timber; that under the holding in the Copeland case she had already been assessed with and paid taxes on the timber for the years 1919 and 1920, and therefore, when she was back-assessed on the timber by the state revenue agent under section 4740, Code of 1906 (section 7058, Hemingway’s Code), for those years, and made to pay taxes thereon again, the result was she was double taxed, and consequently erroneously taxed.

It was held in the Copeland case, in substance, that where lands were assessed for taxes and the assessment approved by the board of supervisors, and no appeal taken from the order of approval by the taxpayer, and the taxes paid, there could be no back assessment by the state revenue agent for the standing timber on such lands, although the owner of the land, in filling out his tax list, failed to make entries as to values in any column other than those provided alone for the value of the land; that the order of approval of the board of supervisors, unappealed from by the taxpayer, was res ad-judicata, and could -not be questioned in a proceeding by the revenue agent to back assess the standing timber on the land of the taxpayer; that the board of supervisors, in approving the assessment of the land, necessarily took into consideration all of its elements of value, including the buildings and other improvements, as well as the standing timber thereon. What was said in the Copeland case of the binding action of the board of supervisors in approving the assessment there involved applies with equal force to the action of the board of supervisors in approving appellee’s assessment. The question whether the value of the timber on appellee’s land was taken into consideration in the action of the board of supervisors in approving her assessment was res ad-judicata, as it was in the Copeland case. Appellee, therefore, had the same right to stand upon that judgment of the board as Copeland’s estate did, and, if she had appealed upon that ground from the action of the board of supervisors in approving the subsequent back assessment by the revenue agent, the result would have been the same as it was in the Copeland case. But appellee did not appeal from that judgment. On the contrary as set out in appellant’s special plea, which the court held bad. on demurrer, appellee appeared before the board of supervisors and admitted that in truth and in fact the standing timber on her land had escaped taxation for the years 1919 and 1920; that the former judgment of the board of supervisors approving her assessment did not in fact, in valuing her land, take in consideration the value of the timber. This situation is an unusual one, it is true, but it does not seem difficult of solution. Under the first judgment of the board, appellee’s standing timber was assessed in assessing the value of her land for taxes. The second judgment of the board, approving the back assessment of the revenue agent adjudged with the consent of appellee, according to the allegations of appellant’s special plea, that the first judgment of the board was erroneous, because in truth and in fact appellee’s standing timber was not considered by the board in approving the first assessment. Neither judgment was appealed from by either party. Now the question is, "Which is the final and binding judgment between the parties? Appellee paid the taxes on the timber in pursuance of the last judgment. By doing so she treated the judgment as valid and binding on her. She is presumed to have known what her rights were under the law. Take for illustration, this kind of a case: A owns a piece of real estate assessed at five thousand dollars. The board of supervisors approves the assessment, and its order doing so becomes final. No appeal is taken from the order by either A or the state. .The question of the value of A’s property for taxation therefore has become res adjudicate/, between A and the state and the county in which the property is situated. A thinks over the matter, and decides that he is not doing his duty as a citizen and a taxpayer; that his land ought to have been assessed at at least twice what it had been assessed. He goes to the state revenue agent and so states. Thereupon the state revenue agent back-assesses the land, adding five thousand dollars to its assessed value. This back assessment is approved by the board of supervisors; A being present and agreeing that his property ought to be assessed for taxes at the valuation of ten thousand dollars instead of five thousand dollars. Can he escape the effect of the last judgment of the board of supervisors? We think not. Putting it differently and leaving out of view appellee’s alleged consent to the hack assessment by the revenue agent: A is indebted to B in the sum of one thousand dollars. A sues B on the cause of action for eight hundred dollars. Judgment goes against B for eight hundred dollars, which B discharges by payment. After the judgment is satisfied, A claims that through error he has sued and obtained judgment for two hundred dollars less than B was due him, and thereupon sues B for the two hundred dollars. But the suit is on the same cause of action as was involved in the first suit. B lets judgment go against him in the second suit for two hundred dollars without interposing the defense of res ad-judicaba,. Is the judgment in the second suit valid and binding % We think so.

We see no irregularity under the statute of the back assessment of appellee’s timber by the state revenue agent. In one of the briefs it is contended there is. Furthermore, under t-he allegations of appellant’s .special plea it would seem that any irregularities in the proceedings were cured because the jurisdictional things were done, and, in addition, appellee appeared to the proceedings.

The result of these views is that the judgment of the lower court must be reversed, and the cause remanded.

Reversed and remanded.