City of Birmingham v. Jones

Decision Date01 March 1934
Docket Number6 Div. 535.
Citation153 So. 213,228 Ala. 160
PartiesCITY OF BIRMINGHAM v. JONES.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action to recover taxes erroneously paid by J. M. Jones against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

W. J Wynn and T. A. McFarland, both of Birmingham, for appellant.

Jas Esdale and John T. Batten, both of Birmingham, for appellee.

THOMAS Justice.

The suit is for taxes erroneously paid to the city. There was an agreed statement of facts.

The pleading was in short by consent and presented the statute of limitations. Sullivan v. North Pratt Coal Co., 205 Ala. 56, 87 So. 804.

The essential points in the case are: (1) Payment on July 7 1931, of $50, of which $24.75 was handed over to the city a week or ten days thereafter; (2) sworn demand for return on April 20, 1932, by verified statement of appellee, made on the city clerk for the $24.75; (3) the sworn demand alleges that the payment was made by mistake, error, or double assessment of the same property; (4) appellee's verified petition to the probate court states payment was made through mistake or error, and claimed refund on said taxes so paid in error on the 7th day of July, 1931; (5) the probate judge's certificate was "that the allegations in the petition appear to be true."

Thus the "sworn claim," the petition for refund of taxes paid in error, and the finding of the probate judge were to the effect that " the taxes were paid by appellee to the tax collector through mistake or error on the 7th day of July, 1931." (Italics supplied.) This was more than three months from the time of payment. No such recovery is allowed by statute after the expiration of three months has elapsed after payment, without an appropriate written demand for repayment-a condition precedent to a recovery. General Acts 1915, pp. 297, 298, § 11; City of Birmingham v. Doster-Northingham Drug Co., 207 Ala. 542, 93 So. 475

.

The provisions of the statute applicable to the city of Birmingham are: "All payments of money made to any such city or any officer or board thereof under mistake of law or fact upon any irregular or illegal tax assessment, or any ordinance or resolution or any assessment for public improvements or for any such purpose whatever, shall only be recoverable if proceedings for such recovery shall be commenced within twelve months after such payment was made and after written claim filed within three months from the time such payment was made." Acts 1915, pp. 297, 298, § 11.

The act, including its section 11, was in force and effect, being within the exceptions of the statute, section 12, Code of 1923. In re Fred Fite (Ala. Sup.) 152 So. 246; City of Birmingham v. Doster-Northingham Drug Co., supra; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874; Ex parte City of Birmingham [Best v. City of Birmingham], 201 Ala. 641, 79 So. 113; Milner v. City of Birmingham, 201 Ala. 689, 79 So. 261; Fitts v. Commission of City of Birmingham, 224 Ala. 600, 141 So. 354; Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; McDougall v. City of Birmingham, 219 Ala. 686, 123 So. 83, 63 A. L. R. 1076; Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823.

It appears from the complaint that the assessment was illegal that the written sworn claim for refund was not filed until more than three months after payment was made on demand. ...

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