Commonwealth v. Hamilton

• Decision Date: 11 March 1903
• Citation: 72 S.W. 744
• Parties: COMMONWEALTH v. HAMILTON et al.
• Court: Kentucky Court of Appeals

72 S.W. 744

COMMONWEALTH v. HAMILTON et al.

Court of Appeals of Kentucky.

March 11, 1903

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Proceeding by the commonwealth against Mrs. Emma Hamilton and others for the assessment of omitted land. From a judgment for defendants, plaintiff appeals. Reversed.

H. T Duncan, Jr., for the Commonwealth. Morton, Darnall & Morton for appellees.

NUNN J.

This was a proceeding begun in the Fayette county court by the auditor's agent to cause the assessment for taxation of 470 acres of land belonging to the appellees, valued at $30,000, which had been omitted to be assessed for the year 1895. It had been regularly assessed before that year, and ever since, at that price. It seems that the omission for that year was caused by a change of trustees for the estate of Archie L. Hamilton. On the 14th day of August, 1897, the auditor's agent filed with the county court a statement alleging that the 470 acres of land had been omitted to be assessed for the year 1895, and caused summons to be issued thereon against "Mrs. Emma Hamilton, trustee of Archie Hamilton," which was executed by the sheriff upon her. The proceeding was continued from that time until January 24 1901, when the auditor's agent filed an amended statement with the county court, and caused a summons to be issued thereon against Mrs. Emma Hamilton, the Security Trust & Safety Vault Company, Mrs. Emma Hamilton, guardian of Archie L. and Amelia Hamilton, and Archie and Amelia Hamilton, to appear and show cause why the land should not be assessed for the year 1895 at the price named. They all appeared, and on a hearing of the case the county court assessed the property in accordance with the statements of the auditor's agent, and from that order the defendants there, appellees here, appealed to the circuit court, and that court sustained their defense and dismissed the proceedings, from which judgment the commonwealth appealed to this court.

We are of the opinion that the lower court was correct in dismissing the proceedings against all the defendants except Mrs. Emma Hamilton, for the reason that more than five years had elapsed after the failure to assess the property before the proceedings were commenced against them. Section 4021 of the Kentucky Statutes reads as follows: "*** When any lands or improvements shall not be assessed in any one year, it may be assessed...