Ex parte Howard-Harrison Iron Co.

• Decision Date: 15 August 1898
• Citation: 119 Ala. 484,24 So. 516
• Parties: EX PARTE HOWARD-HARRISON IRON CO. [1]
• Court: Alabama Supreme Court

24 So. 516

119 Ala. 484

EX PARTE HOWARD-HARRISON IRON CO. ^[1]

Supreme Court of Alabama

August 15, 1898

Petition by the Howard-Harrison Iron Company for mandamus to the judge and clerk of the circuit court of Jefferson county, requiring them to file a return of the commissioners' court to a writ of certiorari in a proceeding to raise a tax assessment on petitioner's property, and for a writ of prohibition restraining such judge from exercising jurisdiction, and to compel him to dismiss the proceedings. Denied.

In the petition, and the exhibits thereto, the following facts were shown: The Howard-Harrison Iron Company is a corporation owning 75 acres of land near Bessemer, Jefferson county Ala., in sections 3, 4, and 5 of township 19, range 4 W., and section 32, township 18, range 4 W., upon which are located its buildings and machinery for manufacturing iron pipe. On the 24th day of March 1897, the said company, by its agent made a sworn return of its property for taxation for the year 1897, and fixed the value of all except its real estate at $60,430, and in said assessment the said agent fixed the value of its real estate at $13,265. Said sums, being added together, made a total valuation of $73,695. After this assessment was made, and after the tax assessor had returned said list and tax books to the court of county commissioners as required by law, H. L. Badham, as tax commissioner of Jefferson county, who had been appointed as such under the act of the general assembly approved February 3, 1897 (Acts 1896-97, p. 521), undertook to have the court of county commissioners assess the valuation of the petitioner's property for the said tax year by increasing the valuation of its real estate from $13,265 to $189,570, as shown by the additional assessment made and filed with the commissioners' court on July 16, 1897. Upon the filing of this additional assessment of said tax commissioner, the commissioners' court docketed said cause on June 1, 1897 by first placing it on the docket of said court as "The State of Alabama against Howard-Harrison Pipe Works," which was afterwards changed so as to read "The State of Alabama against Howard-Harrison Iron Co." But when or by whom such change was made the petitioner did not know. On August 6, 1897, the commissioners' court issued a notice in writing, addressed to the tax assessor, directing him to summons the "Howard-Harrison Pipe Works to appear before said court at its regular term on the 14th day of August 1897, and then and there show cause, if any, why the assessment of this property should not be increased." No other notice of said proceeding was ever issued or given to the petitioner. The return on said notice was as follows: "Executed by mailing a copy of the within notice to the Howard-Harrison Pipe Works at Bessemer, Alabama, August 7, 1897,"-signed by the tax collector. On August 13, 1897, without any further notice to, and without waiver of notice by, the Howard-Harrison Iron Company, as shown by the record, the commissioners' court heard and determined the matter of increasing the assessment of the petitioner's property, and increased the valuation thereof from $73,695 to $100,000. On the docket of the court, where the title of the case was "The State of Alabama against Howard-Harrison Iron and Pipe Works," the judgment of the court, signed by the probate judge, was as follows: "It is ordered by the court of county commissioners that the assessment on the property of the Howard-Harrison Pipe Works, described in this case, lands, buildings, machinery, etc., be raised from $73,695 to $100,000. This 13th day of August, 1895." From this order or decree the state, on August 18, 1897, took an appeal to the circuit court of Jefferson county. When said cause was called for trial, in said court, on December 8, 1897, the Howard-Harrison Company, limiting its appearance specially for the purpose of making said motion, moved the court to dismiss said bill and said cause from the docket of said court for the following reasons: "First. Because said appeal is not authorized by law. Second. Because said circuit court has no jurisdiction to hear and determine the matters and issues sought to be raised by the papers and proceedings in said cause. Third. Because the said commissioners' court has no jurisdiction to hear and try said cause and to render the judgment appealed from. Fourth. Because the said commissioners' court had no jurisdiction to hear and determine said matters, and to render said judgment, on the 13th day of August, 1897. Fifth. Because the said H. L. Badham, as back-tax commissioner for Jefferson county, had no right or authority to make and present to said commissioners' court such additional assessment, and thereby to institute, in and before said court, the proceedings therein which are appealed from. Sixth. Because the appeal in this cause is not authorized by law. Seventh. Because there is no law authorizing an appeal to this court from a proceeding instituted by H. L. Badham, as such back-tax commissioner, for the purpose of raising the valuation of movant's property. Eighth. Because no notice, as required by law, was served as required by law, upon the Howard-Harrison Iron Company to appear before said commissioners' court on the 13th day of August, 1897, and defend against such proceedings instituted for the purpose of increasing the valuation of its property for taxation. Ninth. Because the notice was served on the Howard-Harrison Pipe Works, and required it to appear before said commissioners' court on the 14th day of August, 1897. Tenth. Because no notice was ever issued to or served upon the Howard-Harrison Iron Company of said proceeding in said commissioners' court, as required by law to give said commissioners' court jurisdiction. Eleventh. Because neither the original papers in said cause before said commissioners' court, nor a certified transcript thereof, have been filed in this court. Twelfth. Because, by the act of the legislature of Alabama approved February 21, 1893, creating and providing for terms of the circuit court of Jefferson county at Bessemer, exclusive jurisdiction is conferred upon said Bessemer division of this court over that portion of the territory of the county of Jefferson described therein, which included Bessemer precinct 33, and in which the entire property of the Howard-Harrison Iron Company is located, and where its office is situated; and the Birmingham division of said court has no jurisdiction to hear and determine this cause. Thirteenth. Because the judgment entry of the said judgment from which this appeal is taken fails to show either that the said Howard-Harrison Iron Company appeared in person or by attorney before said commissioners' court, or that any notice of said suit or proceeding was served upon any officer of said corporation upon whom such service, by law, could have been made to give said court jurisdiction; and that, therefore, said judgment, so appealed from, was rendered without jurisdiction over said corporation, and therefore null and void. Fourteenth. Because the act of February 18, 1897, does not provide for giving any notice of appeal, and no notice, was given of this appeal to this defendant." This motion the court overruled. Thereupon the court, on motion of the state, issued a writ of certiorari to the commissioners' court, directing them to send up a full and complete record of the proceedings in said court of said cause. The writ of certiorari was issued as asked for in said motion, and served upon the court of county commissioners. The court made its answer or return to said writ, certifying to the circuit court a full and complete record of all the proceedings in said cause. When this return was offered to the clerk of the circuit court to file, he refused to receive or file it. A motion was then made by the Howard-Harrison Iron Company to the circuit court to compel the clerk to receive and file the answer and return of the said commissioners' court to the writ of certiorari. This motion was overruled. The prayer of the petition is that a writ of mandamus should be issued to the judge and clerk of the circuit court, commanding and requiring them to file in said cause the return made by the commissioners' court in response to the writ of certiorari; and, further, that a writ of prohibition, addressed to the judge of the circuit court, be issued, restraining him from exercising, or attempting to exercise, any jurisdiction in said cause, and to compel him to grant the motion made to dismiss said bill, and to strike the cause from the docket of the circuit court.

B. C. Jones and James E. Webb, for petitioner.

Ward & Houghton, for respondent.

McCLELLAN J.

There is conflict of authority on the point whether a judgment rendered before the appearance day specified in the summons or notice is irregular and erroneous merely, or void. The weight of adjudged cases and texts, however, supports the view that such judgment is erroneous only, and not void, and we so hold. 1 Freem. Judgm. § 126, note 3; 12 Am. & Eng. Enc. Law, p. 147r; White v. Crow, 110 U.S. 183, 4 S.Ct. 71; In re Newman's Estate, 75 Cal. 213, 16 P. 887; Stephenson v. Newcomb, 5 Har. (Del.) 150; Solomon v. Newell, 67 Ga. 572; McAlpine v. Sweetser, 76 Ind. 78; Ballenger v. Tarbell, 16 Iowa, 491; Mitchell v. Aten, 37 Kan. 33, 14 P. 497, and 1 Am. St. Rep. 231; Chair Co. v. Runnels (Mich.) 43 N.W. 1006; Woodward v. Baker, 10 Or. 491; McNeill v. Hallmark, 28 Tex. 157. And hence our conclusion that the rendition of the judgment involved here on the 13th day of August, when the taxpayer had been summoned to appear on the 14th, marks it as an irregular and erroneous judgment, but it is not a void one.

There was much of misdescription of, and mistake in, the...