Woolley v. City of Louisville

• Decision Date: 21 January 1903
• Citation: 71 S.W. 893,114 Ky. 556
• Parties: WOOLLEY et al. v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

71 S.W. 893

114 Ky. 556

WOOLLEY et al. v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky.

January 21, 1903

Appeal from circuit court, Jefferson county, chancery division.

"To be officially reported."

Actions by the city of Louisville against R. W. Woolley and others. From a decree for plaintiff after consolidation of these actions, defendants appeal. Affirmed.

R. W Woolley and H. M. Lane, for appellants.

H. L Stone and Jno. C. Russell, for appellee.

HOBSON J.

Mary J Woolley owned a number of lots in the city of Louisville, and these actions were instituted to enforce the lien of the city for taxes on the property for the years 1885-1900, inclusive. She died on February 2, 1897, leaving, surviving her, her husband and two daughters, who are the appellants herein. The first suit (No. 3,140) was filed May 26, 1888, on the taxes for the years 1885-88, inclusive. On June 18, 1888, the defendants filed a demurrer to the petition, and no further steps appear to have been taken until August 19, 1891, when they filed their answer. Nothing further was done in the case until June 30, 1900, when the plaintiff filed an amended petition, setting up the death of Mrs. Woolley. The property was assessed in the name of Mary J. Woolley. She was sued in this name, and also answered in the name of Mary J. Woolley. As we understand the record, her maiden name was Mary E. Johnston, and in this way her name was sometimes written "Mary E. Woolley," and sometimes "Mary J. Woolley." As more than three years had elapsed after her death, there was no revivor of the case against the children, but the court held that it might proceed against her surviving husband, who was a party to the action originally, and that his interest in the land might be subjected to the taxes without revivor. A reply was filed to the answer, and after various amendments to the pleadings the issues were made up. The second action, known as "No. 4,992," was filed August 8, 1894, to recover for the taxes for the years 1889-94, inclusive. The defendants filed a demurrer to the petition on September 12, 1894. The demurrer was passed from time to time. The plaintiff amended its petition, and on April 14, 1896, the defendants filed answer. After this in some way the papers of the case were lost, and nothing was done until March 12, 1898, when the plaintiff tendered an amended petition, setting up the death of Mrs. Woolley, and praying a revivor. The court held the application to be too late, and refused to revive the action, but on appeal to this court the judgment dismissing the action was reversed. 57 S.W. 499. Among other things, a consent order was entered, filing a substitute for the original petition, also duplicates of the tax bills sued on, "to have the same force and effect as the original petition and original tax bills," and the action was dismissed without prejudice as to the taxes for the years 1893 and 1894. On the return of the case from this court an answer was filed to the amended and substituted petition, to which on November 24, 1900, the plaintiff filed a reply. The third action, known as "No. 5,040," was filed on August 16, 1894, to recover the taxes for the same years as in No. 4,992, but on other property, which was assessed in the name of R. W. Woolley, trustee for Mary E. Woolley. The defendants filed a demurrer to the petition, as in the other cases. The plaintiff filed an amended petition, and on April 14, 1896, the defendants filed answer. Nothing further was done, as in the second case, until after the death of Mrs. Woolley, when a similar amended petition was tendered, and, the then record being lost, a similar substitute petition was filed, and duplicates of the tax bills sued on, by a like consent order. The action was dismissed without prejudice as to the taxes for the years 1893 and 1894. There was the same ruling as to revivor, appeal to this court, and reversal, as in the second case. A reply was filed to the answer, and various other pleadings were filed, making up the issue. On July 14, 1898, the city filed five actions, numbered 18,257, 18,258, 18,259, 18,261, and 18,262, for certain taxes for the year 1897, and garnished appellant's tenant, besides seeking to enforce a lien on the land. In each of these cases the answers were filed, and some other steps taken. On August 16, 1898, the city filed two other suits (Nos. 18,534 and 18,535) to recover for the taxes for the years 1893-98. Certain lienholders on the property were also made defendants to the petition. The defendants filed answer on June 24, 1899. On November 17, 1900, the cases were consolidated, and on January 3, 1901, the defendants filed an amended answer of 24 paragraphs in the clerk's office. On March 2, 1901, the plaintiff filed an amended petition in the consolidated cases, setting up, among other things, taxes for the years 1899-1900. On March 23, 1900, the defendants filed answer to this amended petition. The court struck from the file the amended answer filed in the clerk's office on February 16th, and refused leave to the defendants to file it of record. On April 16th the plaintiff filed a reply to the answer to the amended petition, and on the 29th the defendants filed a rejoinder. On May 25th the defendants filed an amended answer, and on June 20th the court ordered that the amended answer filed on May 25th be controverted of record, and should not delay the trial of the case. The court also struck from the files the defendants' rejoinder of April 29th, and the actions were submitted. To all of which the defendants objected and excepted. The court gave judgment in favor of the city, and the defendants have appealed. A great number of grounds for reversal are relied on:

1. The actions were submitted before they regularly stood for trial.

As between the city and the defendants, the issues were fully made up before its amended petition was filed, on March 2d. The answer to this amended petition, with plaintiff's reply thereto, it seems to us, made up the issues completely. Certainly there was no new matter brought out in this pleading which was not covered by the pleadings filed in the consolidated actions, and the court did not abuse a sound discretion in striking from the files the pleadings referred to, which, so far as material, merely reiterated what had been gone over. We are unable to perceive that there was any issue of fact made with either of the lienholders, the Louisville Trust Company, or the Fidelity, Trust & Safety Vault Company. The actions had been pending for a long time. The parties had had very full opportunity to prepare their cases, and the court did not abuse a sound discretion in submitting them. Where the issues have not been properly completed for the requisite time, though they should have been, the party in default as to time is not entitled to a continuance. Civ. Code, § 364. We fail to see that the defendants were in any wise prejudiced by the submission. It is not shown that they were taken at any disadvantage or deprived of any proof. Every allegation against them was controverted. "The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Civ. Code, § 134. To render judgment before the action stood for trial under the Code is a clerical misprision. The court has power after the expiration of the term to vacate or modify a judgment for a clerical misprision. Civ. Code, §§ 516-518. And no judgment which can be set aside or modified by the court that rendered it, upon motion made after the term in which it was rendered, can be reversed by this court until a motion to set it aside has been made in the inferior court and overruled. Civ. Code, § 763. There has been no motion to set aside the judgment in the lower court, and this objection, if meritorious, is not now available.

2. The allegations of the various petitions were all denied, and, there being no proof to sustain them, the judgment is erroneous.

In section 2996, Ky. St., it is enacted concerning tax bills "Each bill shall be authenticated by the assessor by his signature, or a stamped fac simile thereof, and when so authenticated, it shall be prima facie proof that all steps have been taken to make it a binding tax bill for the amounts and purposes and against the person and property therein named or described; and this rule of evidence shall apply to the tax bills of 1885 and 1886 that have been so authenticated under the ordinance of the general council." The validity of this statute was upheld in City of Louisville v. Johnson, 95 Ky. 354, 24 S.W. 875, and has been recognized in many subsequent cases. In certifying the original transcript the clerk stated that certain of the tax bills referred to in the petition, and the duplicate tax bills named in the consent orders above referred to, were not filed. But under a certiorari from this court he has sent up copies of these papers, with the following certificate: "I, John H. Page, clerk of the Jefferson circuit court, county and state aforenamed, do hereby certify that the papers attached hereto are true and correct copies of what purport to be, and evidently are, copies of the tax bills, or duplicates thereof, for the years 1889, 1890, 1891, and 1892, filed with the substituted petition in case No. 4,992, City of Louisville, Plaintiff, v. R. W. Woolley et al., Defendants, said to be marked 'Exhibits No. 1 to 56,' inclusive. Said exhibits are and have been among the papers of this action, though they are not marked as stated, nor are they marked 'Filed."' Not only were the substituted tax bills filed by a consent order, but they were used in...