City of Jackson v. McCardle's Estate

• Decision Date: 25 November 1940
• Docket Number: 34314
• Citation: 189 Miss. 781,198 So. 736
• Parties: CITY OF JACKSON v. MCCARDLE'S ESTATE
• Court: Mississippi Supreme Court

198 So. 736

189 Miss. 781

CITY OF JACKSON v. MCCARDLE'S ESTATE

No. 34314

Supreme Court of Mississippi

November 25, 1940

Suggestion Of Error Overruled December 23, 1940.

APPEAL from the circuit court of Hinds county, HON. JULIAN P ALEXANDER, Judge.

The Estate of Susie McCardle filed written objection to assessments of property located in the City of Jackson and the objection was rejected and assessment was adopted by the city, and the estate appealed to the circuit court. From the judgment of the circuit court, the city appeals. Affirmed.

Affirmed.

W. E Morse, of Jackson, for appellant.

The court erred in refusing to grant a mistrial to the City of Jackson when the court permitted the appellee, who was appealing from a tax assessment, to have the opening and closing of the argument before the jury.

The burden of proof was on the City to establish the tax. This conferred a right to the appellant to have the opening and closing. The party on whom the burden of proof rests may be determined by considering which would succeed if no evidence were offered by either side, and by examining what would be the effect of striking out of the record the allegations to be proved.

Porter v. Still, 63 Miss. 357.

The appellee took the position that because of the fact he was appealing from the assessment that the only question reviewable would be whether the taxes were excessive or not. But when the statute states that the controversy shall be tried anew in the circuit court, it simply requires the municipality to go ahead and to establish the value of the property in the circuit court, and also establish the validity of its proceedings had before the municipal board.

Sec 62, Code of 1930; Town of Union v. Buckwalter, 136 Miss. 414, 101 So. 561; Miss. State Highway Com. v. Herman, 195 So. 679.

If the city were allowed to take the property without proper and legal assessments and establishing the fact that they are legal assessments, there would be a taking of property without due process.

Harold Cox, of Jackson, for appellee.

The record does not in any manner show how the appellant was injured or could have been injured by depriving its counsel of the opportunity to speak last before the jury. It is a mere conclusion of appellant's counsel set forth in its behalf under such circumstances that the appellant was so thus injured by such procedure. It is not apparent from the record or the contention made in appellant's behalf as to just what the appellant would have said in his closing argument that he could not say and did not say in his opening argument to the jury.

Lamar Hardwood Co. v. Case, 107 So. 868, 143 Miss. 277.

This is not a case where the equalizing board changed the assessment as made by the tax assessor. In the case at bar, the equalizing board made no change whatever in the assessment of this property as made by the tax assessor. The order of the equalizing board is not prima facie correct, but the assessment is prima facie correct. The equalizing board therefore assumed no burden with respect to their judgment in fixing the value of the property in suit because they adopted the valuation placed thereon by the assessor. If the equalizing board had changed the assessment, indeed the burden of proof would have been on them, but having made no change therein, the burden of proof was on the appellee who attacked the assessment as approved by the equalizing board.

Since the...