Graves' Adm'r v. City of Georgetown

• Decision Date: 03 June 1913
• Citation: 154 Ky. 207,157 S.W. 33
• Parties: GRAVES' ADM'R v. CITY OF GEORGETOWN.
• Court: Kentucky Court of Appeals

157 S.W. 33

154 Ky. 207

GRAVES' ADM'R v. CITY OF GEORGETOWN.

Court of Appeals of Kentucky.

June 3, 1913

Appeal from Circuit Court, Scott County.

Action by the City of Georgetown against George T. Graves' Administrator. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Robt. B. Franklin, of Frankfort, and Robt. C. Talbott, of Lexington, for appellant.

B. M Lee, of Georgetown, for appellee.

HOBSON C.J.

The city of Georgetown brought this suit against George T. Graves to recover of him taxes on his personal property for the years 1905, 1906, 1907, 1908, and 1909. He filed an answer in which he denied that he was a resident of Georgetown, and after this he died during the pendency of the action. After his death the city filed an amended petition for the purpose of reviving the action, also to recover the taxes for the year 1910. On a trial of the case before a jury, there was a verdict and judgment for the city for the taxes for the years 1908, 1909, and 1910; its petition being dismissed as to the taxes for the years 1905, 1906, and 1907. The defendant appeals.

The proof on the trial showed that George T. Graves was a bachelor owning about $60,000 in personalty. He had lived all his life in Scott county, outside of the city of Georgetown on a farm that he owned, up to about the year 1904, when he sold the farm, and after this he spent most of his time boarding at some hotel in Georgetown. After he had sold the farm, he occupied a room in the house and always kept some of his clothing and other personal property there. He claimed that as his home, and always voted in that precinct. His niece, to whom he had sold the farm, invited him to remain there with her. But he had no right of residence there, and only remained there at the invitation of his niece when he was there. He spent a good deal of his time visiting in different parts of the United States, but there was evidence on behalf of the city that his real home was in Georgetown after he sold his farm sufficient to take the case to the jury, and on all the proof we cannot say that the verdict of the jury is against the evidence. Residence is a question of fact, and, while we are satisfied that the decedent always intended that his home should be considered at the farm, he no doubt was actuated largely by the motive of escaping city taxation, and we do not see that the jury erred in finding that his real home at least during the years 1908, 1909, and 1910 was in Georgetown.

While section 3489, Ky. St., applying to cities of the fourth class, provides that no ordinance for the assessment of any tax shall be valid unless the yeas and nays thereon be recorded in the journal of proceedings, this provision applies only to ordinances levying a tax. It does not apply to ministerial action taken by the council in making an assessment of property subject to taxation which has not been listed as provided in section 3542. The council may list...