Louisville Bridge Co. v. City of Louisville

• Decision Date: 17 October 1900
• Parties: LOUISVILLE BRIDGE CO. v. CITY OF LOUISVILLE. [1]
• Court: Kentucky Court of Appeals

58 S.W. 598

LOUISVILLE BRIDGE CO. v. CITY OF LOUISVILLE. ^[1]

Court of Appeals of Kentucky.

October 17, 1900

Appeal from circuit court, Jefferson county, chancery division.

"Not to be officially reported."

Action by the city of Louisville against the Louisville Bridge Company to recover taxes. Judgment for plaintiff, and defendant appeals. Reversed.

W. S Pryor and Chas. H. Gibson, for appellant.

H. L Stone, for appellee.

BURNAM J.

This suit was instituted by appellee, the city of Louisville against appellant, the Louisville Bridge Company, on the 10th day of June, 1895, to recover a judgment on tax bills for the years 1890, 1891, 1892, 1893, and 1894. The petition is in five paragraphs, the claim for each year's taxes being set out in a separate paragraph. Appellant answered on the 30th day of September, 1895, and relied on the opinion of the court in the case of Louisville Bridge Co. v. City of Louisville, 81 Ky. 189, and the judgment rendered pursuant thereto, as a bar to this proceeding. To this answer the appellee demurred generally, and the court sustained the demurrer as to the taxes for 1890 and 1891, and held that the answer as to taxes prior to 1891 presented a good defense but as to the subsequent years it did not; that since the present constitution went into effect the bridge company was liable for the taxes sought to be collected under its provisions. No judgment, however, was entered dismissing as to taxes for those two years. It is claimed by appellant, however, that the effect of this ruling of the circuit judge was to eliminate all claims for taxes for the years 1890 and 1891. On the 28th of March, 1896, appellee filed an amended petition alleging the election of the board of equalization, and the publication of the ordinances relied on and referred to in the original petition, and prayed for a judgment as in its original petition. On the same day appellant filed an amended answer in five paragraphs. The first paragraph is a mere amplification of the defense relied on in its original answer. In the second a duplicate assessment of appellant's railroad track for each of the years 1890, 1891, 1892, 1893, and 1894 is relied on. It is averred that in each of these years appellee assessed appellant on all of its bridge superstructure, railroad tracks, and piers, as a whole, including therein a previous assessment of appellant's railroad tracks in the city of Louisville, thus duplicating the assessment as to the railroad tracks. The third, fourth, and fifth paragraphs deny that the city assessor had made out tax bills under the alleged assessment for these years, in conformity with the requirements of the statute. Appellee filed a demurrer to each of the paragraphs of this amended answer, which was sustained, and on January 9, 1897, appellant filed its second amended answer, in which the plea of res adjudicata was made more specific; averment being made that its bridge had been used by certain railroads for their traffic across the Ohio river at Louisville under a contract in which these companies were to pay for the use thereof only a sum sufficient to pay the expense of maintaining said bridge, the taxes properly assessed thereon, and a dividend on its capital stock, and that it had relied upon the decision of the court in the former cases, and was led to believe that its bridge could not be subjected to taxation by appellee, and had failed to collect any sum from the railroads to cover the items of indebtedness sued for, and that appellee was estopped from demanding any taxes on appellant's bridge which accrued prior to the overruling of the opinion in 81 Ky. by the case of Henderson Bridge Co. v. City of Henderson (Ky.) 36 S.W. 561. On February 6, 1897, appellee's demurrer to the second amended answer was sustained, and judgment rendered against appellant for the full amount of the five tax bills sued on, with interest and costs. The appellant moved the trial court to set aside this judgment and grant it a new trial on the ground that it was contrary to the law, which was overruled. On the 21st day of July, 1897, more than 90 days after the entry of the final judgment, appellant moved to correct the record by entering an order nunc pro tunc as of November 9, 1895, carrying appellee's demurrer to the original answer back to the petition, and sustaining same as to the first and second paragraphs of the petition, and overruling the demurrer in so far as the defense in the original answer applied to the third, fourth, and fifth paragraphs of the original petition; second, to correct the judgment because of an alleged clerical misprision apparent on the record, in entering the petition for the amount of taxes for the years 1890 and 1891, asserted in the first and second paragraphs of the petition. Appellee objected to each of these motions, but the court sustained the first and overruled the second motion, and this appeal is prosecuted to reverse the judgment of February 27, 1897.

It is the contention of counsel of appellant: First, that the taxes for the years 1890 and 1891 were disposed of when the demurrer thereto was sustained, and that the subsequent judgment for these items was erroneous on this account; second, that the assessment of the property, and the tax bills made pursuant thereto, are not as required by law, and are therefore invalid; third, that duplicate assessment was made of a part of its property; fourth, that appellee is estopped to tax its bridge until the judgment in the former case was overruled. We shall consider these objections in the order in which they have been stated.

Were the taxes for 1890 and 1891 properly adjudged against appellant? It is true that in the opinion of the chancellor to the original answer it was held that it should be carried back to the petition, and sustained as a good defense for the years 1890 and 1891; but no judgment was rendered pursuant to this opinion, dismissing the petition as to these items, and the order entered pursuant thereto was purely an interlocutory one; and in all of the amended pleadings which followed, and which have been fully set out in this opinion the taxes for these years were still treated as in issue. In the first amended petition the plaintiff recites "that it amends its petition herein, and each paragraph thereof." No demurrer was filed to this amended petition, but, on the contrary, the answer recites "that the defendant, the Louisville Bridge Company, by leave of the court, amends its answer to each paragraph of the petition." And it is evident that appellant regarded the taxes of these years as still in issue at the time this amendment was filed. That amended answer is in part in these words: "(1) The said property was in all respects in the same situation and condition in the years 1874, 1875, and 1876 that it was in the years 1890, 1891, 1892, 1893, and 1894; and each and every reason...