Opinion
No. 32489.
October 19, 1936.
APPEAL AND ERROR.
Where tax collector brought suit against taxpayer for taxes owed to taxing districts, including county, and cause proceeded to final decree from which no appeal was taken by tax collector, county was not entitled to appeal as party to final decree, since state and taxing districts are parties to suit by tax collector, only in sense that collector sues for their benefit, and collector has exclusive control of litigation except in certain instances where trial court may permit beneficiaries to intervene (Code 1930, secs. 13, 6986, 6994).
APPEAL from chancery court of Lawrence county. HON. BEN STEVENS, Chancellor.
U.B. Parker, of Wiggins, for J.B. Gully, on motion to dismiss.
The appeal herein is unauthorized, and this court has no jurisdiction to consider same.
Section 13, of the 1930 Mississippi Code, provides that "an appeal may be taken to the Supreme Court from any final judgment of a circuit court in a civil case, not being a judgment by confession, or from any final decree of the chancery court, not being by consent, by any of the parties or legal representatives of such parties."
Lawrence County is neither a party to the suit nor a legal representative of such. Neither was Lawrence County a necessary party to the suit. It therefore has no authority whatever to appeal the case, and this court is therefore without jurisdiction to consider this case on appeal such as is attempted to be made herein.
John B. Beazley, use of Frederick Norcom v. Seargent S. Prentiss, 13 S. M. 97; Starling Smith Co. v. Flash, 16 So. 875; Adams, State Revenue Agent, v. Kuhn, 72 Miss. 276, 16 So. 598; Warren County v. Lanier, 87 Miss. 606, 40 So. 429; Board of Supervisors of Lauderdale County v. Guaranty Loan, Trust Banking Company; Same v. First National Bank of Meridian; Same v. Citizens' National Bank of Meridian, 118 Miss. 600, 79 So. 802.
It is our earnest contention that the appeal here attempted is unauthorized, and that this court is without jurisdiction to entertain the same.
We therefore insist that this motion should be sustained, and that a proper judgment be entered, dismissing the appeal. Brady, Dean Brady, of Brookhaven, for Denkmann Lumber Company, on motion to dismiss.
The law requires, under section 725 of the Code of 1930, that any person desiring to appeal a case shall notify the court reporter in writing within ten days after the adjournment of court of the fact that a copy of the notes is desired, and among other requirements of said section, which is made a part hereof, is the requirement that the attorney making the request shall file with the clerk of the court a copy of the notice with the statement as to how it was served. No notice has ever been given in this case and, therefore, no appeal can legally be taken even though the person or authority undertaking to appeal had been a party to the litigation. The official court reporter was not called upon or notified in writing, as the record will show, to transcribe his notes.
After Lawrence County and the State of Mississippi have accepted, under a decree of the chancery court of Lawrence County, Mississippi, the tax adjudged to be due by the Denkmann Lumber Company, said Lawrence County is now estopped to undertake to appeal from the judgment of the court, even though the money with which the Denkmann Lumber Company satisfied the decree against it was tendered to it, all of which the record shows was not done.
G. Wood Magee, of Monticello, for Lawrence County, on motion to dismiss.
The state tax collector brought this suit under the provisions of sections 3122, 6994 and 6995 of the Mississippi Code of 1930. His rights and powers are definitely circumscribed by these three statutes, and there is not one line, or one word, appearing in either one of these statutes which gave him the right to ask for the character or decree which was rendered by the court in this case. It is beyond question that the State Tax Collector was merely a nominal complainant in the instant cause, and being merely a nominal complainant, he had no right to settle or compromise the cause of action without the consent of the real complainant.
Emmons v. Myers, 7 How. 375.
The real complainant or plaintiff is the only one who can control the suit.
Eckford v. Hogan, 44 Miss. 398.
Section 13, Mississippi Code of 1930, provides as follows: An appeal may be taken to the Supreme Court from any final judgment of a circuit court in a civil case, not being a judgment by confession, or from any final decree of the chancery court, not being by consent, by any of the parties or legal representatives of such parties. It will be noticed that this statute provides that the appeal may be taken by any of the parties or legal representatives of the parties. Surely, Lawrence County is a party to the suit or cause of action, and the board of supervisors are the legal representatives of the county.
Section 76 of the Mississippi Code of 1930 provides that a county may appeal to the Supreme Court without giving an appeal bond.
The state tax collector, in his brief, misconstrues and erroneously interprets section 13 of the Mississippi Code 1930 granting the right of an interested party to appeal from a final judgment or decree. It is not necessary for all of the parties affected by a final judgment or decree to appeal, but any one of the parties feeling aggrieved may prosecute such appeal without the others joining in.
Section 22, Code of 1930; Avent v. Marquette, 109 Miss. 835; Tardy v. Rosenstock, 118 Miss. 720; Wilkinson v. Love, 149 Miss. 523; Ruff v. Montgomery, 83 Miss. 185.
The appellant contends that the lower court had no power, or authority, no jurisdiction, to make the decree which appears in the record, and that, therefore, the decree is absolutely null and void and does not, and cannot, lawfully adversely affect the interest of Lawrence County and the various taxing districts of the county. The appellant contends that this decree, if allowed to stand, nullifies and abrogates the provisions of section 112 of the Constitution of Mississippi, and not only that, but the decree nullifies and abrogates every provision of the revenue law of Mississippi.
It is earnestly contended here that the state tax collector has apparently, in this case, assumed power and authority which was never conferred upon him by any statute of the state. He has assumed, in this cause, authority to act in matters which are solely under the jurisdiction of the county tax assessor, the board of supervisors, and the state tax commission, and no such authority has ever been conferred upon him by any statute of this state. It would be a great injustice to, not only the taxing authorities of a county, but to the taxpayers also, if the state tax collector were allowed to go into court, as he did in this case, and reduce by agreement, as he did in this case, the liability of the largest taxpayers in the county and still deny the guardians of the county the right to appeal from an unjust and unlawful act of his own.
If Lawrence County has no right to prosecute this appeal, then the fiscal interest of the county is entirely left in the hands of the state tax collector, and not in the hands of the taxing authorities of the county and state where the law placed it.
I contend that there was no cause of action stated on the face of the bill filed in this cause by the state tax collector, and if not, the decree in this case is void as to all the parties in this case, and this question may be raised for the first time in this court.
Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147; Odom v. G. S.I.R.R. Co., 101 Miss. 656; Ins. Co. v. Keeton, 95 Miss. 708.
Appellant, Lawrence County, being a party in interest — one of the real parties in interest — may appeal to this court for the purpose of having this void decree held for naught.
J.B. Gully, state tax collector, sued the Denkmann Lumber Company, in the chancery court of Lawrence county, for taxes alleged to be due by it to several taxing districts, including Lawrence County. The cause proceeded to final decree, and no appeal therefrom was taken by Gully. Lawrence County has attempted to take such an appeal, and pursuant thereto has brought the record to this court. Motions to dismiss the appeal have been filed by Gully, and by the Denkmann Lumber Company, a common ground of each being that the county is without the right to appeal from the decree.
Appeals to this court are granted and limited by section 13, Code 1930, which provides that, "An appeal may be taken to the Supreme Court from any final judgment of a circuit court in a civil case, not being a judgment by confession or from any final decree of the chancery court, not being by consent, by any of the parties or legal representatives of such parties; but such appeal shall operate as a supersedeas only when the party applying for the same shall comply with the terms hereinafter prescribed; and in no case shall such appeal be held to vacate the judgment or decree."
The question then is: Is the county of Lawrence a party to this decree within the meaning of the statute? Section 6986, Code 1930, imposes on the state tax collector the "duty to proceed by suit in the proper court against all persons, corporations, companies and associations of persons for all past due and unpaid taxes of any kind whatever, whether of the state, county, municipality, drainage, levee or other taxing district, or any subdivision thereof." Section 6994, Code 1930, provides that, "All suits by the state tax collector shall be in his own name for the use of the state, county, municipality, levee board or other taxing district interested."
In suits by the state tax collector for the collection of taxes, the state and its taxing districts are parties thereto only in the sense that the tax collector sues for their benefit. He represents them and has exclusive control of the litigation except in so far as the trial court may permit the beneficiaries to intervene under the circumstances set forth in Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318.
The motion to dismiss the appeal will be sustained.
So ordered.