Folsom v. Carnley

• Decision Date: 26 April 1923
• Docket Number: 4 Div. 37.
• Parties: FOLSOM v. CARNLEY.
• Court: Alabama Supreme Court

97 So. 95

210 Ala. 131

FOLSOM v. CARNLEY.

4 Div. 37.

Supreme Court of Alabama

April 26, 1923

Rehearing Denied June 30, 1923.

Appeal from Circuit Court, Coffee County; Arthur B. Foster, Judge.

Detinue by J. A. Carnley against Fred Folsom. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. W Sanders, of Elba, for appellant.

M. A Owen and J. A. Carnley, both of Elba, M. S. Carmichael, of Montgomery, and W. O. Mulkey, of Geneva, for appellee.

THOMAS J.

Plaintiff sued in statutory detinue for the automobile seized in the collection of taxes and sold by the tax collector, and for damages for its detention.

There was no error in denying the motion for a new trial on the ground and facts as to waiver stated. Hurt v. Southern Ry. Co., 205 Ala 179, 182, 87 So. 533.

The suit was filed July 11, 1921, shortly after the automobile had been taken into possession of defendant; on July 14 replevin bond was given and the possession restored to defendant; and on July 22 the alleged tax sale was made by the tax collector. Prior to the taking of the car by said official-the defendant-for plaintiff's taxes due for 1920, all of the tax records of the county had been destroyed. The seizing of the car by Mr. Folsom was prior to any effort to re-establish or substitute said destroyed tax records, including that of plaintiff. Thereafter (October 29, 1921) the Legislature provided for the substitution of lost records, including assessment records. Under the operation of such statute the tax records and assessment of the property of plaintiff Carnley were established, and so certified of dates of December 27 and 29, 1921. General and Local Laws 1921, p. 22; Wise v. State, 208 Ala. 58, 93 So. 886.

As to the foregoing status, there is no conflict in the evidence; the only conflict being as to the value of the car. To the court's general charge no exception is reserved, and on submission the jury returned a verdict in favor of the plaintiff, establishing the value of the property as required by statute in such matters. Gwin v. Emerald Co., Inc., 201 Ala. 384, 78 So. 758.

Counsel agreed that the destruction of tax records, or their loss, did not destroy any existing lien of the state and county for taxes which remained unpaid. Such were the recent announcements of this court. Bailey v. Folsom, Tax Col., 207 Ala. 329, 93 So. 479; Clark v. Eagerton, 207 Ala. 491, 93 So. 455; Wise v. State, 208 Ala. 58, 93 So. 886.

The declared legislative effect and extent of a substituted tax record authorized by the statute is that "such substituted record shall be of equal validity with the original." General and Local Laws 1921, p. 22. This was a remedial statute, and was retroactive. Barrington v. Barrington, 200 Ala. 315, 76 So. 81. In Wise v. State, supra, this court declared:

"The establishment of the existence of the valid assessment and the discovery of its extent and nature by resort to a court of equity for such purpose have the practical effect of furnishing the conclusive evidence of former existence of such jurisdictional fact and to dispense with the necessity of thereafter resorting to secondary evidence in its proof, as by purchaser at such tax sale. May v. Parham, 68 Ala. 253; Peddy v. Street, 87 Ala. 299, 6 So. 3; Ward v. State, 78 Ala. 455; Whitney v. Jasper Land Co., 119 Ala. 497, 500, 24 So. 259."

The general authority of the tax collector may be thus stated. It is provided:

"After the book of assessments has been completed as herein provided, the county tax adjuster or the board of county tax adjusters shall certify on the book of assessments that the same has been examined and corrected by him by comparing the book of assessments with the tax returns, both as to items of property and amounts of assessments, and approved by him, and that the amount of state tax is $...... (here give amount), the amount of county tax is $...... (here give amount), the amount of special taxes is $...... (here give amount), specifying the total amount of each of such taxes, and such certificate is to be the warrant to the collector of the county to proceed to collect such taxes in the manner directed by law.

"When the book of assessments has been completed, as herein provided, the county tax assessor must without delay make out in triplicate upon forms to be furnished by the state auditor, a complete abstract of all real and personal property as contained in the assessment book of his county, showing the total amount and value of each class of taxable property, and property exempt from taxation, and the amount of tax on each item, extended in a column; such abstract of assessment must be approved and certified to by the county tax adjuster or the board of county tax adjusters, one of which the said tax assessor must forward to the state auditor not later than the first day of October, of each year, one to the state tax commission, and the other he must deliver to the tax collector by said date."

Gen. Acts 1919, §§ 64, 65, pp. 305, 306. (Italics supplied).

It is further provided by statute that-

"After the first day of January of each year, the tax collector must proceed, without delay, to levy upon any personal property of delinquent taxpayers for the payment of their taxes, and after having first given ten days notice of the time and place of sale, with a description of the property to be sold, by posting the same at three or more public places in the precinct of the residence of such delinquent, either at the time of assessment or of the levy or if he is a nonresident of the county, in the precinct in which the levy is made, he must sell the same, or so much thereof as may be necessary to satisfy the taxes, fees and expenses of sale, including expenses of keeping the property and moving the same to the place of sale in front of the court house of the county, or at the voting place, or, in case the

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