Cochran v. State

• Decision Date: 19 May 1921
• Docket Number: 16 Div. 285
• Citation: 89 So. 278,206 Ala. 74
• Parties: COCHRAN v. STATE.
• Court: Alabama Supreme Court

89 So. 278

206 Ala. 74

COCHRAN v. STATE.

16 Div. 285

Supreme Court of Alabama

May 19, 1921

Appeal from Circuit Court, Jefferson County; A.E. Gamble, Judge.

A.W Cochran appealed from the action of the Board of Revenue of Jefferson County in the fixing of valuation for taxing purposes of his property, and the appeal, on motion of the State, was dismissed, and he appeals. Reversed and remanded.

Wm. K Brown and Rudulph & Smith, all of Birmingham, for appellant.

Weatherly Birch & Hickman, of Birmingham, for the State.

THOMAS J.

The appeal, taken from the board of revenue of Jefferson county to the circuit court, was by a taxpayer, contesting the tax valuation fixed on his property. The appeal was dismissed on motion of the state, on grounds that it was not taken within the time prescribed by law.

Statutory provisions of the Murphree Act, "to provide for the general revenue of the state of Alabama," are:

"Sec. 104. All appeals from the ruling of the county tax adjuster or board of tax adjusters fixing the values for property shall be taken within ten days after the date of the final decision of the county tax adjuster or board of tax adjusters to the court of county commissioners or board of revenue. The trial upon such appeal shall be de novo and the court shall render a judgment ascertaining and fixing the assessment valuation of said property, describing the property involved. *** From the judgment of the court of county commissioners or board of revenue, as herein provided for, either party may appeal to the circuit court of the county within thirty days from the rendition of the judgment and trial shall there be had de novo."

"Sec. 108. All such appeals to the circuit court as herein provided shall be taken within thirty days after the final decision of the court of county commissioners or board of revenue fixing the valuation as provided for in this act, and the taxpayer shall give bond with sureties to be approved by the clerk of the court to which the appeal is taken and payable to the state of Alabama, conditioned to pay all the costs created by the appeal and abide and perform whatever judgment said court may render in the premises. *** From the judgment of the trial court, either party may appeal to the Court of Appeals, or to the Supreme Court, as in civil cases, within thirty days from the rendition of the judgment."

General Acts 1919, pp. 282, 316-318.

In Jacobs v. Goodwater Graphite Co., 87 So. 383, it is declared that an appeal is taken to this court when good and sufficient surety for costs is lodged with the register or clerk (Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241), and is perfected when the cause is duly docketed in this court within the time prescribed by statute (Code, § 2868, as amended by Gen. Acts 1915, p. 711; Gen.Acts 1919, p. 84; Code, § 2870). And by analogy such is the rule that will be applied to an appeal from the board of revenue to the circuit court; for where the bond is given by the taxpayer and filed in the circuit court pursuant to statutes, and is approved by the officer of that court prescribed by the statute, it must be referred to the date of taking the appeal from the final decision of the board of revenue or court of county commissioners; that is to say, such is its reference to determine whether the appeal is taken within the time prescribed by statute.

On a trial of the issue of fact, it appeared from the entry in the certificate to the transcript of the appeal to the board of revenue that the judgment by said board was rendered against the taxpayer on September 9, 1920; that the appeal from the valuation so fixed by the board to the circuit court and filed in that office was taken "10/9/20," which the court judicially knows is an abbreviation in common use and indicated October 9, 1920. Moseleys Adm'r v. Mastin, 37 Ala. 216 ("adm'r"); Sheffield Fur. Co. v. Hull C. & C. Co., 101 Ala. 446, 14 So. 672, and Elliott v. Howison, 146 Ala. 568, 40 So. 1018 ("C.O.D." and "f.o.b."); Birmingham & A. Ry. Co. v. Maddox, 155 Ala. 292, 46 So. 780 (that "5x16" is measure applied to shingles); Hunt v. Smith, 9 Kan. 137, 153. The appeal bond of date October 9, 1920, though indorsed, "Taken and approved this the 13th day of October, 1920, Wm. J. Waldrop, Clerk of Circuit Court of Jefferson County, Ala., filed in office October 13, 1920," if it was delivered to the clerk of the circuit court by appellant or counsel for appellant on ...