Commonwealth v. Fidelity & Columbia Trust Co.

• Decision Date: 07 October 1919
• Citation: 185 Ky. 300,215 S.W. 42
• Parties: COMMONWEALTH v. FIDELITY & COLUMBIA TRUST CO.
• Court: Kentucky Court of Appeals

215 S.W. 42

185 Ky. 300

COMMONWEALTH v. FIDELITY & COLUMBIA TRUST CO.

Court of Appeals of Kentucky.

October 7, 1919

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Petition by Commonwealth of Kentucky, by, etc., against the Fidelity &amp Columbia Trust Company, executor of Ewald's Estate, to vacate or modify judgment. Judgment for defendant, and plaintiff appeals. Affirmed.

See also, City of Louisville v. Fidelity & Columbia Trust Co., 182 Ky. 551, 206 S.W. 778.

Charles H. Morris, Atty. Gen., for the Commonwealth.

Humphrey Crawford, Middleton & Humphrey and Charles W. Milner, all of Louisville, for appellee.

CARROLL C.J.

Previous to 1911, the commonwealth instituted proceedings in the Jefferson county court to assess against L. P. Ewald and his estate various items of personal property alleged to have been omitted by him from assessment for the years 1904, 1905, 1906, 1907, 1908, and 1909. Among the items so alleged to have been omitted was a large sum of cash on deposit in St. Louis banks.

For some reason this record is singularly free from anything that would show the date when motions or pleadings were filed or orders or judgments entered, but we find from the briefs that in March, 1911, a judgment was rendered in the Jefferson county court in these cases assessing certain specified personal property of Ewald for the years 1904, 1905, 1906, 1907, 1908, and 1909. The judgment does not show what precise disposition the court made of the effort of the commonwealth to assess the money alleged to have been in the St. Louis banks; but, as it is silent on this subject, it must be considered as conclusive of the fact that the court found that this St. Louis money was not subject to assessment or taxation in Jefferson county.

No appeal was prosecuted from this judgment, nor does it appear that any motion was made to vacate or modify it, nor were any proceedings instituted for the purpose of setting it aside until April, 1917, when the commonwealth filed in the county court a petition to vacate and modify it. In this petition it is stated that, during the pendency of the suit in which the judgment was rendered, there was a suit pending in the Lyon circuit court seeking to assess for the year 1910 a large sum of money in bank which is the same money that was sought to be assessed in the action in which the judgment was rendered; that, this case having been brought to the Court of Appeals, that court in an opinion reported in 140 Ky. 692, 131 S.W. 774, and extended in 142 Ky. 465, 134 S.W. 481, held that the money in bank sought to be assessed was not the property of Ewald individually on September 1, 1906, and September 1, 1907, but was the property of the Ewald Iron Company on each of said dates, and therefore assessable in Lyon county, the home of the Ewald Iron Company; that soon after these opinions were handed down and on March 1, 1911, the attorneys for the commonwealth and the county court of Jefferson county construed them as holding that the money in the St. Louis banks was not subject to assessment in Jefferson county in the name of Ewald for the years 1906 and 1907, and consequently the judgment of March, 1911, so provided; that thereafter, in another suit seeking to assess this money, it was held by this court, in an opinion handed down in 1916 and reported in 168 Ky. 71, 181 S.W. 1095, that this money was subject to assessment in Jefferson county as of September 1, 1906 and 1907, thus in effect overruling its prior opinion. Therefore it was prayed that the judgment of the Jefferson county court be vacated and the cash in bank alleged to have been omitted from assessment in September, 1906, and September, 1907, and which it was sought to assess in the suit in which the judgment was rendered, be assessed in Jefferson county for each of those years.

In other words, it is sought to vacate the judgment of the Jefferson county court entered in March, 1911, upon the ground that the county court and the attorneys for the commonwealth were misled by the opinions of this court into the belief that this money sought to be assessed in Jefferson county for 1906 and 1907 was assessable for those years in Lyon county and not Jefferson county, and therefore the judgment sought to be vacated did not assess this money in Jefferson county; that after more than five years had elapsed the Court of Appeals decided that this money was assessable in Jefferson county and not Lyon county; that the construction placed on the opinions of this court in 140 and 142 Ky. by the county court and the attorneys for the commonwealth constituted unavoidable casualty or misfortune, within the meaning of section 518 of the Civil Code of Practice, authorizing a new trial to be granted "for unavoidable casualty or misfortune."

The county court in which this suit to vacate the judgment was brought ruled that the 1911 judgment was a bar to its maintenance and that the facts stated in the petition to vacate it did not constitute unavoidable casualty or misfortune within the meaning of the Code, and, the circuit court on appeal having ruled the same way, the commonwealth brings the case here.

It is conceded that the judgment of the county court rendered in March, 1911, failing to assess the money sought to be assessed in the suit in which that judgment was rendered for the year 1906 and 1907, was a final and conclusive adjudication of the fact that this money was not assessable in Jefferson county for the years 1906 and 1907, unless it should be vacated in this proceeding. It is also conceded that the only ground upon which the vacation of this judgment is sought is that the court rendering it and the attorneys for the commonwealth were misled by the opinions of this court into the belief that the money sought to be assessed in the cases in which the judgment was rendered was not...