Humphrey v. Lawson, 8 Div. 432
| Decision Date | 04 October 1951 |
| Docket Number | 8 Div. 432 |
| Citation | 54 So.2d 439,256 Ala. 198 |
| Parties | HUMPHREY et al. v. LAWSON. |
| Court | Alabama Supreme Court |
A. A. Carmichael, Atty. Gen., and H. Grady Tiller, Asst. Atty. Gen., for appellants.
J. N. Powell, Hartselle, for appellee.
On July 8, 1947, the State Department of Revenue made and entered a final assessment against R. W. Puckett, a resident of Hartselle, Morgan County, Alabama, of sales tax liability for the period from March 1, 1942, to May 28, 1946, which assessment also included interest and penalty. §§ 763-767, Title 51, Code 1940. Puckett did not appeal from this assessment as provided by §§ 140 and 768, Title 51, Code 1940.
After the time for taking an appeal had expired, the State Department of Revenue, hereafter called the Department, placed an execution in the hands of Sheriff Humphrey, of Morgan County. The sheriff notified Puckett of the fact that he had the execution, advising him that he would have to proceed to collect unless payment was forthcoming.
Thereafter, on October 21, 1947, Puckett, through his counsel, presented to one of the judges of the circuit court of Morgan County, in equity, a bill alleging that the assessment of the Department was void on grounds not necessary to set forth here, and praying that Sheriff Humphrey be enjoined from levying on his property under the execution issued by the Department. Upon presentation of the petition, the following order was entered:
'In this cause, the petitioner having filed his petition alleging that a certain assessment made against him by the Department of Revenue of the State of Alabama is void; that said assessment was made final by the State Department of Revenue on July 8th, 1947, and that the Sheriff of Morgan County, Alabama, is about to levy an execution on property of the petitioner for satisfaction of said judgment or assessment; It Is Hereby Ordered that said petition be, and the same is hereby set down for hearing before the undersigned at the Court house of Morgan County, Alabama at 10 A.M. on November 26th, 1947.
'It is further ordered that no further action be taken toward the enforcement of said assessment or judgment pending said hearing.
'It is further ordered that a copy of this order be mailed by United States Mail, postage prepaid to the State Department of Revenue at least 10 days before the date set for the hearing of this petition, and that a copy of the petition in this cause accompany said copy of this order.
'It is further ordered that a copy of this order be served on the Sheriff of Morgan County, C. B. Humphrey.
'This the 21st day of October, 1947.
'Newton B. Powell, Circuit Judge.'
A copy of the order was received by Sheriff Humphrey and by the Department.
Prior to the day set for hearing, Sheriff Humphrey filed his demurrer to the petition for injunction.
On November 26, 1947, the day set for the hearing, the trial court entered a decree sustaining the demurrer, but giving the petitioner, R. W. Puckett, ten days in which to amend his petition. Thereafter, on December 2, 1947, Puckett amended his petition by adding thereto the following:
A copy of the amendment to the petition was served on Sheriff Humphrey on December 10, 1947. The record does not show that the Department was advised of the amendment, althouth it was the Attorney General and counsel for the Department who had filed the demurrer on behalf of Humphrey, which demurrer had theretofore been sustained.
On January 20, 1948, a decree pro confesso was entered by the register of the circuit court of Morgan County, in equity, which read in part as follows: 'It is, on motion of Petitioner, ordered, adjudged and decreed by the Rigister that the amended petition in this cause be and it is hereby taken in all things as confessed by C. B. Humphrey, the Sheriff of Morgan County, Alabama, the defendant aforesaid.'
On January 23, 1948, the petitioner, R. W. Puckett, was examined under oath before the judge. Puckett produced certain books and records which he contended reflected his sales during the period covered by the assessment. He stated he did not owe any sales tax and testified as to certain conversations which he had with the agents of the Department who examined his books and records. He testified that one of the agents told him he should not pay anything extra because he did not owe it.
On January 29, 1948, Sheriff Humphrey demurred to the petition as amended. On January 30, 1948, the following decree was rendered:
'The evidence having been adduced orally before the Court after decree pro confesso in said cause, and the same being considered by the Court, it is of the opinion...
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Gray v. State ex rel. Atty. Gen.
...no motion to dismiss was made prior to submission and any contest of the exemption claim was waived. Of similar import is Humphrey v. Lawson, 256 Ala. 198, 54 So.2d 439. There, the appellee was contesting a final tax assessment by the State. There was no security for costs, but two so-calle......
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Odem v. McCormack
...is not sustained by the record. The decree pro confesso admitted the facts well pleaded in the bill. Equity Rule 32; Humphrey v. Lawson, 256 Ala. 198, 54 So.2d 439. The facts alleged in the bill, admitted by the decree pro confesso, were in our opinion clearly sufficient to give the bill eq......
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State v. Cobb
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Ex parte Helbling
...defense is made and the bill is taken as confessed and the court grants relief, the final decree will support an appeal. Humphrey v. Lawson, 256 Ala. 198, 54 So.2d 439. In view of the foregoing, we conclude that the Helblings have not pursued the proper remedy. Appeal from the final decree ......