Robertson v. Greenwood Lumber Co.

• Decision Date: 30 January 1922
• Docket Number: 21903
• Citation: 90 So. 487,127 Miss. 793
• Court: Mississippi Supreme Court
• Parties: ROBERTSON, STATE REVENUE AGENT, v. GREENWOOD LUMBER CO

90 So. 487

127 Miss. 793

ROBERTSON, STATE REVENUE AGENT, v. GREENWOOD LUMBER CO

No. 21903

Supreme Court of Mississippi

January 30, 1922

APPEAL from circuit court, of Deflore county, HON. S. F. DAVIS Judge.

Suit by Stokes V. Robertson, State Revenue Agent against the Greenwood Lumber Company, to recover taxes due the state. Judgment for defendant, and plaintiff appeals. Reversed and remanded. See also, 118 Miss. 769, 79 So. 820.

Cause reversed and remanded.

Monroe McClurg, for appellant.

After the demurrer of the defendant to the plaintiff's amended declaration against it on three counts, one to recover the delinquent taxes alleged to be due the state, one for the taxes due the levee board and the third for the taxes due the City of Greenwood, had been sustained by the lower court at a former term, and on the plaintiff's appeal reversed and demurrer overruled by this court, 118 Miss. 769, the defendant filed several pleas to the amended declaration without leave of the court and without affidavit of a meritorious defense. On motion of the plaintiff to strike these pleas from the file, the pleas were stricken, but the defendant, by leave of the court, made an affidavit, purporting only to show good grounds, and the court allowed the pleas filed over the objection of the plaintiff because the affidavit was insufficient in law. Upon that ruling of the court the first and second assignments of error are predicated. The pleas are on pages 21 and 22 of the transcript and the motion on page 26 and the affidavit of meritorious defense on pages 29, 30 and 31.

The statute requires that the defendant's right to plead over after demurrer sustained, as against the right of course to the plaintiff to have judgment, depends upon the filing of an affidavit by the defendant embodying two essential things one that he has good and substantial defense, which is but the opinion of the defendant; the other, that he must set forth fully in his affidavit the nature of his defense that the court may judge as a matter of law whether the pleas ought to be admitted. Hemingway's Code section 538. The requirement is mandatory. Feazell v. Stolyfus, 98 Miss. 886. This court held in Development Co. v. Fire Ins. Co., 105 Miss. 184 (210-211) that where the general issue was filed and under it notice given of special matter setting up facts which constitute a good and substantial defense to the suit, was sufficient. But nothing akin to that proposition is found in the affidavit here. It makes no reference to the pleas it merely repeats the general issue it sets up only the opinion of the defendant through Mr Webb, the manager, that he had paid all taxes required of the defendant.

While the affidavit refers to the records in the sheriff and tax collector's office to show that he had paid the taxes, the same records are exhibited with the declaration to show that it had not paid enough, and the affiant refers to those exhibits as showing only that he paid said taxes, but the affidavit was at fault in not even mentioning the charge that it sold over a half million feet of lumber. There was but one issue on the question of the payment of the taxes and that was whether or not the defendant had in fact paid what the law required of it. The affidavit further says that "the plaintiff is trying to recover as if the defendant had paid no taxes whatever." That is true; and it is as certainly true that the affidavit sets up no defense to the plaintiff's demand. The payment of an insufficient tax is equivalent to the payment of none at all. Pollard v. Phoenix, 63 Miss. 244. He does not even show by his affidavit that his company ever received a license to exercise the privilege of selling lumber.

The amended declaration not only exhibited a statement showing what the defendant had paid, but it charges that defendant was doing the business of operating a lumber yard at which his annual sales during the years mentioned exceeded one-half million feet, and that the annual tax was one hundred dollars to each the state and levee board, and fifty dollars to the City of Greenwood. Section 6542, Hemingway's Code, in the language of the statute it alleges that it was the duty of the defendant to pay the tax and procure the license to carry on the business, as required by the statute and that he could do it no other way. Hemingway's Code, section 6630-6637; that the defendant did not do that. So, the real issue as tendered by the declaration was, whether the defendant's sales exceeded one-half million feet, and that is not contradicted, explained or in any wise mentioned by any defense set out in the affidavit; the affidavit falls so far short of that requirement to fully set forth the facts of defense as to make no mention of this controlling fact. It is respectfully submitted that plaintiff's motion for judgment on overruled demurrer should have been sustained, and that the court erred in not sustaining the motion, but overruling it and allowing the defendant to plead upon an insufficient affidavit.

The third, fourth and fifth assignment of error considered together applications for production of books. In order to give the defendant timely notice that a motion would be made at the next term of the court for the production of its books, documents and papers, or an inspection and copy thereof, plaintiff gave him such notice on the 28th of April, several days before the term. P. 23. The notice called for an inspection and copy, or permission to take copy, of any books papers and documents in the possession or under the control of the defendant containing evidence relating to the merits of the action or proceeding or of the defense thereto, involved in this cause. And for reason stated, that the defendant was in possession or had control of the only inventories, books, papers and documents, showing the amount, or the approximate amount of the largest stock of merchandise carried at any time during the several years mentioned in the declaration, and that the plaintiff had no full knowledge of other means of producing said evidence, and that the ends of justice demanded the production of said books, p. 23, Hemingway's Code, section 723.

Defendant replied to the applications for the production of the books, setting up twelve reasons for denying plaintiff's right to the rule for the reason that to do so would tend to incriminate the defendant, the statute did not apply to a case like this, that it would be an unlawful invasion of defendant's rights. The unconstitutionality of the statute and other causes are considered to call for no argument, nor any of the grounds save the privileged one found in the sum total of them all that it would bean invasion of its rights. The objections are based upon the decision in Assurance Society v. Clark, 80 Miss. 471 (483), which case fell down because of the uncertainties in the allegations of the bill, and the facts in which case, nor the authorities, and the strong argument of Judge EDWARD MAYAS in that case, do not square with the facts and reasons in the instant case.

After filing of the defendant's objections and before that matter came on to be heard by the court, the plaintiff asked leave of the court to amend his application, under oath, giving additional and specific reasons therefor, so as to require the defendant to produce only its records of sales of lumber during the years from May 1, 1915 to May 1, 1917, respectively, for the causes shown in the original and the amended motion, p. 32.

It is respectfully submitted that the causes given in the amended motions were good and sufficient and that the court erred in overruling them. 18 Corpus Juris, p. 1124, par. 126 to 137, inclusive.

The chief reason why the defendant in this case should be compelled to produce the books, arises from the nature of the case. It was the law-imposed duty of the defendant in the first instance to pay the tax on affidavit, if required, and procure the license of his own volition. Defendant was wholly without fault or entirely in default; there was no fault at all with the plaintiff. The defendant had but one answer to make to the application, namely that it did not sell one-half million feet of lumber during either of the two years, the rest of it follows in sequence only. Hence, it was in no sense a fishing application for a discovery, which means, "bill" (statutory application) in which plaintiff shows no cause of action, and endeavors to compel defendant to disclose one in plaintiff's favor, 19. Cyc. 1030. That was the death of Mrs. Clark's bill in her suit against the Assurance Co., 80 Miss. supra.

It is believed, if the court please, that the following two recent decisions settle the question of the right of the state revenue agent, the representations of the state itself, to have the defendant to produce the evidence particularly called for in his several applications. They are able opinions and amply annotated. Kitchum Coal Co. v. District Court of Utah (1916), 4 Am. Law Report, 619, bottom p. 631; Burnett v. State et al., West (1913), two cases calling for bank books; 47 L. R. A. (N. S.) 1175; opinion at page 1184. The following quotation is taken from part of page 1187, and part of page 1188, beginning at the bottom of first column. See, also, Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 52 L.Ed. 327, 28 S.Ct. 178, 12 Ann. Cas. 658; Hemmond Packing Co. v. Arkansas, 212 U.S. 322, 348, 349, 53 L.Ed. 530, 543, 544, 29 S.Ct. 370, 15 Ann. Cas. 645. The sixth assignment; Rulings on the Documentary Evidence Record, pp. 63, 64, 65, 67, 74, 75, 77, 80, 105, to 114.

The crowning error of the trial court, it is respectfully submitted, was in holding, and ruling, that none of the one hundred or more way-bills from a dozen different...