Fonda v. City of Louisville

• Decision Date: 03 March 1899
• Citation: 49 S.W. 785
• Parties: FONDA et al. v. CITY OF LOUISVILLE et al. [1]
• Court: Kentucky Court of Appeals

49 S.W. 785

FONDA et al. v. CITY OF LOUISVILLE et al. ^[1]

Court of Appeals of Kentucky.

March 3, 1899

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by the city of Louisville and others against A. G. Fonda and others to recover taxes. Judgment for plaintiffs, and defendants appeal. Affirmed.

Lane &amp Burnett and D. I. Heyman, for appellants.

H. L Stone, for appellee city of Louisville. O. H. Wehle, for appellee Meier.

HOBSON J.

Appellees instituted this action to recover of appellants the taxes due for the fiscal years ending August 31, 1887, 1888, 1889 1890, and 1891, respectively, on the property described in the petition. The petition is not as full in its averments on some points as it might be. A demurrer was filed, and then an amended petition. After this, the demurrer was not pressed. An answer was filed controverting all the allegations of the petition, and a trial was had on the merits. No objection was made in the lower court to the sufficiency of the pleadings to sustain the judgment, and, if there was any defect in the petition that might have been available on demurrer, it was cured by the evidence and the judgment on the merits.

The statute under which these taxes were levied makes this provision: "Each bill shall be authenticated by the assessor, by his signature or a stamp fac simile thereof, and when so authenticated it shall be prima facie proof that all steps have been taken to make it a binding tax bill for the amounts and purposes and against the person and property therein named or described." Sess. Acts 1885-- 86, vol 2, p. 916, § 2. The tax bills sued on are authenticated as provided by this statute, and there is nothing in the record to overcome the prima facie case thus made out. The learned counsel for appellants cite many cases holding that, in actions to enforce liability for a tax, every step must be shown which is necessary to the validity of the tax. These decisions were rendered under a different statute. The act quoted was passed to change this rule. It provides that, when the tax bill is duly authenticated, it shall be prima facie proof that all necessary steps have been taken. It shifts the onus from the plaintiff to the defendant. If any necessary steps have not been taken, the defendant must so aver; and, if the averment is controverted, the burden of proof is upon him to show the irregularity. This has not been done in this case.

The chief contention is that the board of equalization was not regularly appointed. On this subject the statute provides "If in any year a legal board of equalization is not elected or fails to meet, the tax bills shall not thereby become void, but when any taxpayer in such a case complains about the assessment upon him such a board shall then be chosen in the...