Commonwealth v. Churchill

• Decision Date: 08 January 1909
• Citation: 131 Ky. 251,115 S.W. 189
• Parties: COMMONWEALTH v. CHURCHILL.
• Court: Kentucky Court of Appeals

115 S.W. 189

131 Ky. 251

COMMONWEALTH v. CHURCHILL.

Court of Appeals of Kentucky.

January 8, 1909

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by the Commonwealth of Kentucky by George H. Alexander, a revenue agent, against the Columbia Trust Company, trustee for Julia Churchill, to assess property omitted from assessment. The county court dismissed the proceeding, and on appeal to the circuit court that court also dismissed the proceeding, and the Commonwealth appeals. Affirmed.

M. J Holt, for appellant.

Rowan Hardin, for appellee.

HOBSON J.

On October 16, 1906, George H. Alexander, a revenue agent of the state at large, filed a statement in the Jefferson county court under section 2441, Ky. St. 1903, against the Columbia Trust Company, trustee for Julia Churchill, to have assessed as omitted property for the years 1902, 1903, 1904, 1905, and 1906 the personal property held by the trust company as trustee for her. The trust company filed an answer, pleading that Julia Churchill was a nonresident of the state and resided in New York. Upon a hearing in the county court, the proceeding was dismissed. The commonwealth appealed to the circuit court. In the circuit court, after the case had been submitted, the court allowed the defendant to file an amended answer pleading a former judgment in bar of the proceeding. On final hearing in the circuit court, the proceeding was again dismissed, and the commonwealth has appealed to this court.

The amended answer set up a matter of record. The circuit court did not abuse a sound discretion in setting aside the submission and allowing the amended answer to be filed. The policy of the Code is to allow amendments of the pleadings so that justice may be better administered. L. & N. R. R Co. v. Hall, 115 Ky. 567, 74 S.W. 280. The plea in bar set up the fact that a similar proceeding had been instituted against the trust company by A. J. Bizot for the same years the only difference between the two proceedings being that in the case instituted by Bizot it was stated that the trust company had in its hands a large number of estates which it held as trustee or in trust for the owners, and which had been omitted from assessment, but no estate was specified or named in the statement. The trust company in that case moved the court to require the plaintiff to make the statement more definite, and to state what estates were sought to be listed. The court overruled the motion, and, the case being heard, a judgment was entered fixing the amount due by the trust company for the years named at $3,000. This was paid. The proceeding before us was instituted after that judgment had been rendered, and after it had been satisfied. The fact that the estate of Julia Churchill was not named in the statement in the first case does not affect the scope of the judgment. Under the allegations of the pleadings there, the commonwealth could have shown that the trust company had the estate of Julia Churchill in its hands, and that it had been omitted from assessment. The scope of a judgment does not depend upon the proof heard on the trial; for, if the plaintiff fails to prove a part of his case, he cannot in a second action sue for that which he might have recovered in the first action if he had proved his case as he ought to have done. The trustee is personally liable for the taxes. Ky. St. 1903, § § 4023, 4050. The personal liability of the trustee might be asserted in an action against the trustee, and the judgment in the first action is conclusive as to what this personal liability is. The purpose of the first action was to charge the trust company with the taxes on all the trust property in its hands as trustee which had been omitted from assessment during the years named. The estate of Julia Churchill could have been assessed in that proceeding. Whether it was assessed in fact or not is not a question we need determine. If it might have been assessed in that proceeding, the result is...