MILAM v. SMITH-MAUER BROS.

MILAM v. SMITH-MAUER BROS.
1913 OK 385
133 P. 33
38 Okla. 328
Case Number: 3803
Decided: 06/10/1913
Supreme Court of Oklahoma

MILAM et al.
v.
SMITH-MAUER BROS.

Syllabus

¶0 1. TAXATION--Correction of Assessment--Repeal. Section 1845. Comp. Laws 1909 (section 9, c. 12, Sess. Laws 1897, was repealed by section 1, c. 34, Sess. Laws 1903.
2. Same--Correction of Assessment--Appeal. Sections 7601 and 7602, Comp. Laws 1909 (Rev. Laws 1910, secs. 7353, 7354), do not confer upon the board of county commissioners authority to correct erroneous assessments, upon the ground that property has been assessed to the wrong person; and the district court, on appeal from an order of the board of county commissioners, upon application to correct the assessment, has only the jurisdiction of the inferior tribunal; and, where the ground for the correction is the one named above, the district court on appeal from the board of county commissioners is without power to investigate and determine the question attempted to be presented.

I. L. Strange, for plaintiffs in error.
Wadlington & Wadlington, for defendant in error.

HAYES, C. J.

¶1 Defendants in error were plaintiffs in the court below, and will be referred to as such. Their petition, filed in the court against plaintiffs in error, who will hereafter be referred to as defendants, is divided into five paragraphs. In the first paragraph they alleged that the court in which this action was brought did, in the month of January, 1912, in an appeal from the action of the board of county commissioners of Choctaw county, make and enter a judgment correcting the tax rolls of said county so as to place the name of J. P. Dick upon the assessment and tax rolls in lieu of the name of petitioners as the owner of certain property. By the second paragraph they alleged that, notwithstanding said order and judgment of the court directing the defendant Milam, as county clerk, to make such correction of the assessment and tax rolls, said defendant, although notified of the order of the court, still retains the name of petitioners upon said rolls, and refuses to make the correction. In paragraph 3 they allege that the defendant county treasurer has issued a tax warrant against the goods and chattels of petitioners and delivered the same to the sheriff of the county, and that the sheriff of the county, acting under the authority of said warrant, has levied upon the goods and chattels of petitioners, and is now proceeding to subject their property to the payment of taxes that should be assessed against one J. P. Dick, which because of an error in the assessment rolls has been assessed against plaintiffs. By paragraph 4 they allege that by refusal of the county clerk to comply with the judgment and order of the court in correcting the assessment rolls, and by reason of the issuance of the tax warrant by the county treasurer and the levying upon their property, said defendants have obstructed the lawful process and order of the court. By paragraph 5 they allege that because of said acts of the clerk in refusing to obey said judgment and order of the court to correct the rolls, petitioners have been damaged in the sum of $ 500. They thereupon pray that the court issue its process to the defendants, county clerk and sheriff, requiring each and all to appear before the court and show cause why they should not be held for contempt, and further pray for a restraining order, restraining the sheriff from proceeding further under the tax warrant issued, and for judgment against the defendant county clerk for their damages in the sum of $ 500. It will be observed from plaintiffs' petition, the contents of which have been, in substance, stated above, that they do not seek by this proceeding to invoke the aid of a court of equity to correct the assessment rolls, but they are attempting to enforce their rights under a former judgment of the district court of the county by which said rolls were ordered corrected. Defendants meet this issue in their answer by admitting that the district court of Choctaw county, on an appeal from the board of county commissioners, did, on the 9th day of January, 1912, make a certain order requiring defendant county clerk to correct the tax assessment rolls of said county by placing the name of J. P. Dick upon said rolls in lieu of petitioners' names, as the owners of certain property subject to assessment for taxes; but they allege and state for their defense that said order of the court was null and void, because the board of county commissioners from which the appeal was taken was without jurisdiction to make such order, and that the district court, upon appeal, was also without jurisdiction. The judgment appealed from enjoins the sheriff from proceeding further under the tax warrants, adjudges the county clerk in contempt, assesses a fine against him, and awards damages to plaintiffs. The evidence establishes that the stock of goods seized by the defendant sheriff under tax warrant was originally assessed for the year 1912 to one J. P. Dick, but thereafter said assessment was changed, and the same was assessed to plaintiffs; and as assessed to them, the tax rolls were made up and delivered to the county treasurer for collection of the taxes. In December, 1912, plaintiffs filed their petition with the board of county commissioners, charging that the property had been erroneously assessed to them, and praying that the tax rolls be corrected, so that the tax should be assessed on the tax rolls against J. P. Dick. The board of county commissioners dismissed the petition of plaintiffs, upon the ground that they were without jurisdiction. From this order an appeal was taken to the district court. That court, on the 9th day of January, 1912, heard the appeal over the objection of the county commissioners to its jurisdiction and rendered judgment, ordering that the assessment of said stock of goods be changed from plaintiffs to J. P. Dick, and directed defendant county clerk to change said assessment upon the tax rolls accordingly, which the county clerk has failed to do. The county clerk contended that he was not a party to the proceeding before the board of county commissioners, and that the district court never acquired jurisdiction of his person; but the only question we need determine is whether the district court had jurisdiction, on appeal from the county commissioners, to order the correction of the assessment by the county clerk. The authority of the board of county commissioners to correct the defects or errors in the assessment of tax rolls is statutory, and must be strictly confined to the limits marked out by the statute. Bostick v. Bd. Co. Com'rs,

¶2 KANE and DUNN, JJ., concur; WILLIAMS and TURNER, JJ., not participating.