Kuhl v. Long

• Decision Date: 13 February 1894
• Citation: 102 Ala. 563,15 So. 267
• Parties: KUHL v. LONG ET AL.
• Court: Alabama Supreme Court

15 So. 267

102 Ala. 563

KUHL v. LONG ET AL.

Supreme Court of Alabama

February 13, 1894

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Elizabeth Long and another against Mariah M. Kuhl. From a judgment for plaintiffs, defendant appeals. Affirmed.

This was an action of assumpsit to recover the amount paid by the plaintiffs for taxes upon certain property which they had purchased from the defendant. The suit was originally commenced in a justice of the peace court. There was no complaint filed in that court, but in the summons the cause of action was stated as follows: "Amt. due bill taxes city of Mobile, on property bot. by plaintiff from defendant after January 1, 1892, $16.40; amount of taxes bill, state and county, Mobile, bot. by plaintiff from defendant after January 1, 1892, $24.75." The justice of the peace rendered judgment for the plaintiff for $41.15, the total amount claimed, and the defendant appealed to the circuit court. In the circuit court the plaintiff announced ready without having filed a complaint in the cause; and thereupon the defendant moved to dismiss the cause for the want of prosecution, and because the plaintiffs had announced themselves ready for trial, and had not filed any complaint the record showing that the amount claimed by plaintiffs was more than $20. The court refused this motion, and the defendant duly excepted. The plaintiffs were then allowed by the court to file their complaint, in which they sued individually as Elizabeth Long and Catherine Long, and not as Long & Co., as the summons from the justice of the peace court declared. On the trial of the cause, as is shown by the bill of exceptions, Elizabeth Long, one of the plaintiffs testified that she and her coplaintiff purchased a certain lot of land from the defendant on January 21, 1892, and that there was a deed executed to them on that date. This witness further testified that she had paid the taxes when the bill for the same was presented to her by the tax collector, and offered to introduce in evidence the receipt of the tax collector for the payment of the same. One of these receipts was made out in the name of "Mrs. Elizabeth Long & Co." To the introduction of this receipt of the tax collector in evidence the defendant objected, because it was immaterial and irrelevant, and because on its face it was not the tax bill of the plaintiffs in this case. The court overruled this objection, admitted the said receipt in evidence, and to this ruling the defendant duly excepted. The testimony for the defendant tended to show that the negotiation for the purchase of her land by the plaintiffs was carried on by the agents of the respective parties. The agreement of her agent to pay the taxes is copied in the opinion. It was also testified for the defendant that the payment of taxes due upon real estate was, according to usage and custom, in the real-estate business, a matter of special agreement between the vendor and vendee, and that the taxes were usually pro rated. Upon the introduction of all the evidence, the defendant requested the court to give the general affirmative charge in her behalf, and duly excepted to the court's refusal to give the same. The action of the court in giving additional instructions to the jury in the absence of the defendant's counsel is sufficiently stated in the opinion. After the return of the verdict of the jury for the plaintiffs, the court rendered judgment accordingly; and thereupon the defendant moved the court to set aside the verdict and judgment, and grant her a new trial, upon several grounds, which it is unnecessary to set out in detail. This motion for a new trial was overruled, and the defendant duly excepted. The appeal is prosecuted by the defendant, who assigns as error the rulings of the court upon the evidence, the refusal to give the general affirmative charge for the defendant, the court's refusal to grant a new trial, and the instruction by the court to the jury in the absence of her counsel.

Fredk. G. Bromberg, for appellant.

Wm. S. Anderson, for appellees.

COLEMAN J.

On the 21st of January, 1892, Mariah M. Kuhl sold and conveyed by deed, for a present expressed consideration, with covenants of warranty, a certain parcel of land to Elizabeth Long and Catherine Long. Subsequently, the vendees paid the taxes which were assessed against the land for the year 1892. The plaintiffs Long began proceedings in the justice court to recover the amount thus paid for taxes. The lien for taxes attaches to land on the 1st day of January, and this lien holds good against any subsequent alienation. Driggers v Cassidy, 71 Ala. 529; Swann v. State, 77 Ala. 545. The summons issued by the justice of the peace commanded the defendant to appear and answer the complaint "of Elizabeth Long and Catherine Long, doing business as Long & Co." The bond given on the appeal from the justice court to the circuit court was made payable "to Elizabeth Long and Catherine Long," and from a judgment "in favor of Elizabeth Long and Catherine Long." ...