Harrison County v. Robertson

• Decision Date: 09 February 1920
• Docket Number: 20904
• Court: Mississippi Supreme Court
• Parties: HARRISON COUNTY v. ROBERTSON

83 So. 617

121 Miss. 387

HARRISON COUNTY v. ROBERTSON

No. 20904

Supreme Court of Mississippi

February 9, 1920

October 1919

APPEAL from the circuit court of Harrison county, HON. C. L RUSHING, Judge.

1 TAXATION. State revenue agent may sue for unpaid taxes.

The state revenue agent has the right "to proceed by suit in the proper court for past due and unpaid taxes of any kind."

2. VOLUNTARY PAYMENT OF TAXES TO TAX COLLECTOR AFTER SUIT BROUGHT BY REVENUE AGENT DOES NOT DEFEAT RIGHT OF AGENT TO COMMISSION.

Voluntary payment of taxes by deliquent taxpayers to the tax collector instead of to the revenue agent, makes no difference in the right of the revenue agent to demand his commissions, provided only that the taxes were paid as a result of a demand and litigation instituted by the revenue agent.

3. STATE REVENUE AGENT SUING FOR DELINQUENT TAXES PENDING APPEAL FROM ASSESSMENT HAS NO RIGHT TO COMMISSIFNS.

Under Code 1906, section 81 (Hemingway's Code, section 61) authorizing appeal from assessments by the board of supervisors, and section 4310, providing that collection of taxes shall not be delayed by appeal, a state revenue agent may not recover commissions for delinquent taxes paid by a bank after suit brought by the agent to compel payment, but before trial, where at the time of such suit an appeal by the bank from the assessment of such tax was pending.

4. ABATEMENT AND REVIVAL. Identical suit cannot be entertained at the same time.

Two suits should not be entertained at the same time in the same court between the same parties and involving the same demand.

5. PLEADING. Plea which states good defense to action good though not strictly a plea in abatement.

Although a plea is denominated as a plea in abatement, the court will treat it as good on demurrer, if it states facts which defeat the action, though not strictly a plea in abatement.

HON. C. L. RUSHING, Judge.

Suit by Stokes V. Robertson, state revenue agent, against Harrison County. Judgment for plaintiff, and defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and cause remanded.

R. C. Coman, for appellant.

This is a suit brought by Stokes V. Robertson, revenue agent, against Harrison county, to recover from said Harrison county twenty per cent of the amount of the taxes paid to the state and county by the First National Bank of Gulfport for the year 1916, and alleging that he is entitled to same for the reason that he, as said official instituted suit against the said First National Bank on the 21st day of June 1917, to enforce the payment of said taxes, and alleging that said taxes were then delinquent and that the said taxes were paid after said suit was filed and before the convening of the court to which the same was returnable; the amount of said taxes being five thousand, three hundred, seventy-three dollars and ninety-seven cents, and the twenty per cent. thereof claimed by the revenue agent being one thousand, seventy-four dollars and seventy-nine cents.

A plea in abatement was filed by Harrison county to which plea the plaintiff filed a demurrer. I know of no better way to present the facts to this court than by setting out in full the plea in abatement filed by the defendant in the court below, the truth of which plea is admitted by the demurrer filed therein by the plaintiff, said plea in abatement being as follows: "And the defendant, Harrison county, by its attorneys, comes and defends the action brought against it by the said Stokes V. Robertson, the state revenue agent, and says that before and at the time of the announcement of the said action by the said plaintiff against this defendant, there was pending and still is pending and undisposed of, in this court, a suit by the First National Bank of Gulfport against the board of supervisors of Harrison county, Mississippi, and the state of Mississippi, said suit being No. 6142 on the docket of the said circuit court of Harrison county, Mississippi, wherein the identical subject-matter, to wit; the taxes due Harrison county Mississippi, and the state of Mississippi by said First National Bank of Gulfport, for the year 1916 in the sum of five thousand, three hundred seventy-three dollars and ninety-seven cents is in controversy, said suit No. 6142 being an appeal by the said First National Bank of Gulfport from the assessment and judgment of the board of supervisors of Harrison county assessing and fixing the amount of taxes due and payable by the said First National Bank of Gulfport on its personal property for the year 1916; and that although the said First National Bank of Gulfport did pay and has paid its said taxes for the year 1916, if said First National Bank of Gulfport should be successful in its said suit No. 6142 at the trial thereof, said taxes for the year 1916, paid by said bank would have to be refunded or an adjustment thereof made as should be determined and provided by the judgment of this court in said cause; and that the said taxes for the year 1916 amounting to five thousand, three hundred, seventy-three dollars and ninety-seven cents from the assessment of which by the said board of supervisors of Harrison county the said First National Bank of Gulfport has appealed to this court in cause No. 6142 aforesaid, is the same and identical assessment and taxes upon which plaintiff now seeks to recover twenty per cent thereof; and reference is here made to the file of papers in the said suit No. 6142 and the same is prayed to be considered a part hereof as fully as if copied at length herein or attached hereto; and this the defendant is ready to verify; wherefore the defendant prays judgment of the court that the said action here begun be abated until the trial and final disposition of the aforesaid suit No. 6142.

R. C. Coman, for Harrison County.

The First National Bank had a legal right to appeal from the judgment of the board of supervisors assessing its taxes for the year 1916, and after the appeal of the said bank from said assessment was perfected, the bank had a legal right to pay its taxes before a final disposition of the appeal.

Section 4310, Code of 1906 (section 6946, Hemingway's Code) provides that "in event said taxes are paid before the final disposition of the appeal, any money improperly collected, as shown by the judgment shall be refunded by the state and county respectively, if they have received the money," and provides how the same shall be refunded" in that event and the tax collector receiving it shall not have paid it over." This section also provides for the refunding by the state and county of the respective amounts improperly collected. Until the appeal of the said First National Bank from the assessment of its taxes for the year 1916 by the board of supervisors was determined, there was no basis upon which to compute the amount of taxes due by the bank, and the parts of the whole due the state or county. Were we to concede that the bank was delinquent in the payment of its taxes for the year 1916 and that the payment of said taxes was brought about by the suit of the revenue agent against said First National Bank for the collection of said taxes, yet, while the appeal of the said First National Bank from its assessment, upon which said taxes were to be collected, was pending, there was no amount fixed by law upon which the compensation of the revenue agent could be computed. Surely the case at bar should have been abated until said appeal by the First National Bank was determined.

Harrison County might have had other defenses to this action of which it could not avail itself at that time. The judgment rendered by the court is against Harrison county only and the amount of same is twenty per cent of the taxes paid by the First National Bank to the state of Mississippi and Harrison county. If the compensation of the revenue agent is a fixed charge of twenty per cent against the amount collected, I fail to see how judgment could be rendered against Harrison county for the full twenty per cent when the court is bound to take judicial knowledge of the fact that a substantial part of the taxes paid by the said First National Bank are taxes due the state of Mississippi; again, I say the amount of the taxes to be paid by the bank, and upon which compensation due the revenue agent is to be calculated, could not be determined by the court until the appeal of the said First National Bank from the judgment of the board of supervisors of Harrison county assessing said taxes, was disposed of.

I take it that the plea in abatement hereinbefore copied in full, the truth of which is admitted by demurrer, is both law and argument enough in this case.

A. J. Ramsey, for appellee.

The facts will disclose that this case is controlled by the case of T. C. Garrett v. Stokes V. Robertson, State Revenue agent, recently decided by this court but not yet reported.

As to the plea in abatement, the demurrer was properly sustained. Said plea constituted no defense to said action. Said plea does not anywhere state that the First National Bank had a meritorious case against the county nor set out any facts from which a meritorious case could exist nor facts that would bar the revenue agent of his twenty per cent commission; nor does it set out any facts from which the court could determine if said First National Bank had a meritorious case or would be successful. Further, the plea does not state or allege that any attempt had been made or would be made to dispose of said case and the parties were altogether different from the parties in the instant case.

Besides judgment in this case was rendered on the 25th day of March, 1919, and the case referred to in said plea of abatement, cause 6142, First...