Minge v. Smith
| Decision Date | 30 June 1921 |
| Docket Number | 2 Div. 766 |
| Citation | 206 Ala. 330,89 So. 473 |
| Parties | MINGE v. SMITH, Tax Collector. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.
Suit by Bessie C. Minge against George M. Smith, as Tax Collector, of Marengo County. From a decree sustaining demurrers to the bill, complainant appeals. Appeal dismissed.
J.H Bankhead, Jr., of Jasper, and George Pegram, of Faunsdale for appellant.
Harwell G. Davis, Atty. Gen., and Hugh White, Asst. Atty. Gen., for appellee.
Bessie C. Minge files this bill of complaint against George M. Smith as tax collector of Marengo county, Ala., to prevent him from collecting more than $73.62 taxes on her property. She assessed her property for the year 1920 at $3,990, which was 60 per cent. of its market value, and that the taxes thereon were $73.62, which was tendered to the tax collector. It was refused by him, and she deposits in court said sum of money. She avers that one B.F. Pool is acting as tax adjuster of the county, and gave her notice through the mail that the provisional taxable value of her property was $10,940 instead of $3,990, as fixed by her, and on the day for the hearing fixed the assessment of her property at $10,940, and that her taxes are based on the valuation fixed by said tax adjuster, amounting to $196.92; that this was void because the statute creating the said office of tax adjuster is unconstitutional, that the law fixing his salary and compensation is unconstitutional, and this statute authorizing the tax adjuster to raise the valuations of property assessed for taxation, violated the "due process of law" clause of the Fourteenth Amendment to the federal Constitution, and section 6 of the Constitution of Alabama, in that it deprived citizens of property without giving them notice of the proceedings against them and no opportunity to be heard in defense of their property rights. The bill prayed for a temporary injunction restraining the tax collector from collecting said illegal taxes--the difference between $196.62 and $73.62.
Hon. R.I. Jones, judge of the Seventeenth judicial circuit, indorsed on the bill of complaint an order directing the register of the court to issue the writ of injunction prayed for, upon complainant's entering into bond in the sum of $250, conditioned, payable, and with sufficient sureties as the law requires to be approved by the register of the court. No bond was ever tendered or approved. No writ of injunction issued. This order for temporary injunction was never put into operation by complainant complying with the terms on which it could issue.
The defendant demurred to the bill of complaint. The defendant filed a motion to dissolve the injunction. The defendant filed a motion to discharge the injunction. The defendant filed answer to the bill of complaint. The presiding judge made this order in this cause on March 12, 1921:
"This cause coming on to be heard, it is ordered by the court that the demurrers incorporated in the answer in this cause, filed by the respondent in this cause, be, and the same are hereby, set down for hearing on Wednesday, the 16th day of March, 1921."
On March 16, 1921, the following decree was rendered by the court, and filed in the cause on the foregoing submission:
An appeal from this decree, rendered on March 16, 1921, was taken, appeal bond given and approved on April 20, 1921, by the complainant.
An appeal lies to this court from a decree sustaining demurrers to a bill of complaint. It must be taken within 30 days after the rendition of the decree. This appeal was taken more than 30 days after this decree was rendered. Section 2838, Code 1907, as amended Acts 1915, p. 137.
The appeal on decree sustaining demurrers comes too late. This court cannot review this decree on demurrer. It has no jurisdiction over it. The motion to dismiss it must prevail, unless the other aspect of this decree, the other order of the court in the decree, gives this court jurisdiction of it by this appeal. Sewell v. Buyck, 168 Ala. 533, 53 So. 279. This decree does not dismiss this bill in terms or effect, directly or indirectly. It sustains the demurrers to the bill of complaint. Then the court, apparently of its own motion, as the cause was submitted only on demurrers, made the following order:
"And it now appearing to the court that the injunction heretofore granted in this cause has not been issued nor any bond therefor given by the complainant, it is further ordered, adjudged, and decreed by the court that the order for the said injunction be, and the same is hereby, vacated, annulled, and held for naught."
Does an appeal lie from that order or decree to this court, and, if so, was it taken in time? This is the question for us to answer. If no appeal is allowed by law from that order, then this court has no jurisdiction of this appeal. If an appeal is allowed, but it was not taken within the prescribed time, then this court has no jurisdiction of the appeal.
"An appeal lies to the Supreme Court on all interlocutory orders *** sustaining, dissolving or discharging injunctions." Section 2839, Code 1907.
This order of the court does not sustain the injunction. This is clear. It does not dissolve the injunction. The injunction was never issued. It could not be dissolved when it never had existence. It is not an order discharging an injunction. It could not be discharged because it was never issued. So this section (2839, Code 1907) gives no appeal from...
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Lewis v. Martin
... ... Bauer ... Gro. Co., 105 Ala. 200, 16 So. 693, a motion for new ... trial was held too late when made after the appeal was taken ... Smith v. State, 17 Ala. App. 565, 86 So. 120; ... Wade v. State, 18 Ala. App. 322, 92 So. 97. See, ... also, 1 Enc. Dig. of Ala. Rep. p. 397, § 441 ... complaint. Pepper v. Horn, 197 Ala. 395, 73 So. 46; ... Bowe v. Pierson, 206 Ala. 250, 89 So. 711; Minge ... v. Smith, 206 Ala. 330, 89 So. 473. If that ruling ... dismissed the bill, such decree became final, and is governed ... by the statute ... ...
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Harden v. U.S. Fidelity & Guaranty Co.
...thirty days and if not taken within that time this Court is without jurisdiction and must dismiss the appeal ex mero motu. Minge v. Smith, 206 Ala. 330, 89 So. 473; City of Troy v. Murphree, 214 Ala. 118, 107 So. 83; Holt v. City of Birmingham, 237 Ala. 196, 186 So. 549; Boshell v. Phillips......
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Luther v. Luther
... ... Code 1907, § 2856; ... Holmes v. Holmes, 210 Ala. 227, 97 So. 628; ... Pepper v. Horn, 197 Ala. 395, 73 So. 46; Minge ... v. Smith, 206 Ala. 330, 89 So. 473; Bowe v ... Pierson, 206 Ala. 250, 89 So. 711. Thereafter, was the ... appeal abandoned or discontinued? ... ...
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Greenwood v. State ex rel. Bailes, 6 Div. 679.
...one, it is the duty of the court to dismiss the appeal ex mero motu ( Long v. Winona Coal Co., 206 Ala. 315, 89 So. 788; Minge v. Smith, 206 Ala. 330, 89 So. 473; of Troy v. Murphree, 214 Ala. 118, 107 So. 83). We are therefore constrained to dismiss the appeal. Appeal dismissed. ANDERSON, ......