Grenada Bank v. Town of Moorhead

• Citation: 133 So. 666,160 Miss. 163
• Decision Date: 13 April 1931
• Docket Number: 29363
• Court: United States State Supreme Court of Mississippi
• Parties: GRENADA BANK v. TOWN OF MOORHEAD

133 So. 666

160 Miss. 163

GRENADA BANK v. TOWN OF MOORHEAD

No. 29363

Supreme Court of Mississippi

April 13, 1931

Division A

1 TAXATION.

Questions involved on taxpayer's appeal to circuit court from municipal assessment of taxes did not become moot notwithstanding taxpayer while appeal was pending paid taxes under protest (Code 1930, sections 62, 2591).

2 TAXATION.

Taxpayer's payment of assessment under protest does not preclude him from prosecuting appeal from erroneous assessment (Code 1930, section 62).

3. TAXATION.

Assessment for taxes constitutes judgment rendered for money to be paid, as well as fixing lien on property.

4. TAXATION. Order of mayor and board of aldermen of town, in substance adopting and approving assessment rolls, notwithstanding subsequent order, held final, and therefore appealable (Code 1930, sections 62, 2582).

Order of mayor and board of aldermen of town, from which appeal was taken, after reciting that necessary notice was given and assessments equalized and adjusted, adopted and approved assessment rolls, both real and personal. Subsequently, at another meeting of the mayor and board of aldermen, an order was passed relative to tax levy for same fiscal year. Latter order also approved assessment rolls for that year.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.

Proceedings by the Grenada Bank against the Town of Moorhead in matter of tax assessment for the fiscal year 1929. From a judgment of the circuit court dismissing an appeal of the taxpayer from an order of the mayor and the board of aldermen, the taxpayer appeals.

Reversed and remanded.

Forrest G. Cooper and Earl T. Thomas, both of Indianola, for appellant.

There is no statutory prohibition to inform appellant of the appellee's inability to pass a final order at the September 9th meeting. How can appellant or anyone else ever by informed as to the finality of a decree or order other than by the face of the minutes of the board? Can the board arbitrarily pass a subsequent order and call that final? Such acts would virtually deprive any aggrieved person of his right of appeal if he did not continually inspect the records at all times. The scheming board by this practice of passing orders ad infinitum and without notice could cut out all appeals by such postponement of so called "final orders."

The finality of a judgment, order, or decree is not affected by nugatory provisions therein; nor is the right to appeal from a final judgment affected by the rendering of subsequent orders which are in form final, but which are void because made at a subsequent term without jurisdiction therefor having been retained by appropriate means. 3 C. J. 446, section 258.

A final judgment, order or decree has been variously defined or held to be one that either terminates the action itself, or decides some matter litigated by the parties, or operates to divest some right, in such manner as to put it out of the power of the court making the same, after the expiration of the term, to place the parties in their original condition; a judgment that has terminated the litigation between the parties in the court rendering it.

3 C. J., page 441.

The difference between interlocutory and final decrees will therefore be seen to be that in the case of the former some further steps are required to be taken to enable the court to adjudicate and settle the rights of the parties, while in the case of the latter the party obtains his rights without any further adjudication on the merits either by the direct operation of the decree itself, or by any means of proceedings of a ministerial character in the execution of it.

2 R. C. L., page 40, section 22.

It is a well known rule of law that an appeal from the assessment of taxes cannot delay or postpone the collections due by the assessment as approved. After a favorable judgment the appellant under the authority of section 2591 of the Code 1930 (Chapter 273 of the Laws 1926) could have appeared before the mayor and board of aldermen of the appellee again, and with the judgment of the circuit court as an exhibit and authority, asked for a refund of the taxes erroneously paid.

Lauderdale County v. Citizens' National Bank of Meridian, 119 Miss. 165, 80 So. 530.

Payment of taxes in accordance with the assessment by the municipal board is similar in principal to the payment of a money judgment.

The right of a defendant against whom a money judgment has been rendered, to pay the same and afterwards appeal to this court, was settled in the case of Gordon v. Gibbs, 3 S. & M. 473, which case seems to be in accord with the present weight of authority.

3 C. J. 678; note to McKain v. Mullen, 29 L. R. A. (N. S.) 22; Currie v. Bennett, 111 Miss. 228, 71 So. 324.

Moody & Johnson, of Indianola, and J. B. Hughes, of Moorhead, for appellees.

The order of the board at the September meeting expressly referring to a notice to tax payers and the notice being on file, no one could be misled, but any taxpayer examining the notice, to which reference was made, would be informed that objections to the assessments should be made at the October meeting, and that the rolls would not be finally approved until those objections were heard.

It is fundamental and elementary that an appeal will lie only from a final order of a municipal board or board of supervisors.

Moller-Vandenboom Lumber Co. v. Board of Supervisors of Attala County, 135 Miss. 249, 99 So. 823; Wilkinson County v. Foster Creek Lumber and Mfg. Co., 100 So. 2.

The circuit court on appeal, where taxes have been paid, cannot order a refund thereof.

Lauderdale County v. Citizens National Bank, 119 Miss. 165, 80 So. 530.

Under section 62, Code of 1930, the appeal from a judgment of the mayor and board of aldermen operates as a supersedeas and the taxes need not be paid until the appeal is finally disposed of.

Tunica County v. Tate, et al., 78 Miss. 294.

OPINION

McGowen, J.

The town of Moorhead published the following notice: "Taxpayers will please take notice that the assessment rolls both real and personal are now on file in the Clerk's office for the fiscal year 1929, and that the board of mayor and aldermen will at their next regular meeting to he held on Tuesday evening at 7:30 o'clock P. M., September 3rd, 1929, proceed to equalize and adjust the valuations of the property listed on said rolls, and all property owners are hereby given notice to examine the said rolls, and all property owners are hereby given notice to examine the said rolls after the board have passed on the valuations thereon, and if any complaints are to be made, they should be made at the October meeting of the board. Done by order of the board this the 6th day of August, A. D., 1929."

This notice, together with the affidavit of the city tax assessor as to the correctness of his roll, is in the record as a part of the assessment roll of the town of Moorhead, Miss.

On September 9th, as a part of the minutes of a recessed meeting, recessed from time to time from the beginning of the regular meeting on September 3, 1929, there appears a signed order relative to the assessment of the Grenada Bank, the effect of which order is that the board held that four items of real estate which the bank had assessed to itself as owner, in its return, the board declared to be the real estate of Morris wells. The item, valuation, and raised valuation appears in the record.

The board also found that ten items of real estate returned by the bank as its real estate belonged to Paul Jones, and these items are set out in the order, with raises made by the board of mayor and aldermen, save in one instance; and the order strikes from the Grenada Bank real assessment eleven thousand six hundred and twenty dollars, and directs that the said amount be added to the capital and surplus of the said bank; and the order concluded in this language: "It is further ordered by the board that all of the above mentioned property as rendered on the assessment of the aforesaid Grenada Bank, and shown on the records of Sunflower county, Mississippi, as being the property of the aforesaid Morris Wells, and Paul Jones, be, and the same is hereby, raised in valuation as shown in red ink on the original assessment roll of real estate for the town of Moorhead, Mississippi, for the year 1929, to a valuation as equal to the assessed valuation of other property adjoining the same, as shown on the real estate assessment roll for the town of Moorhead, Mississippi, now on file in the Clerk's office. So ordered this the 9th day of September, A. D., 1929. J. J. Henry, Mayor."

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