WEAVER vs. THE STATE

WEAVER vs. THE STATE. [BILI. EST equity TO CORRECT ERRORS ÍBT TAX-ASSESSMENT.] 1. Authority of commissioners’ court to revise tax-assessment. — Under the act approved December 9, 1862, (Session Acts, 1862-3, p. 43,) the commissioners’ court lias authority, on the application of a person against -whom a tax is assessed for money hoarded,' to revise the assessment, ascertain whether there is error in it, and by its judgment define that error; and if it exceeds its authority in correcting the error by its own judgment, instead'of directing it to be done, this is an immaterial matter, when the error is such that its correction is a mere ministerial duty. 2. JSepdtahle relief against judgment at law correcting erroneous tax-aseess“■ ment. — Where the judgment of the commissioners’ court, rendered on the application of a tax-payer for the correction of an alleged erroneous assessment against him, is removed by him,by certiorari, into the circuit court, and there affirmed, he cannot obtain relief against it in equity, on grounds which were available in the legal forum, without showing that he was prevented from obtaining relief at law by fraud, accident, or the act of the opposite party, uilmixed with fault or neglect on his own part. Appeal from the Chancery Court of Dallas. Heard before the Hon. N. W. Cooke. The bill in this case was filed by Phillip J. Weaver, on the 29th June, 1863, against the State of Alabama, the county of Dallas, and the tax-collector of said county; and sought to enjoin the collection of a tax which had been assessed against him, for the year 1862, on $100,000 hoarded out of the State. ’ The bill alleged, that the complainant, acting under legal advice, did not include in his list of taxable property, rendered to the tax-assessor, the proceeds of his cotton crop previously shipped to Liverpool, under the circumstances hereinafter stated; that the assessor thereupon assessed against him the amount of $100,000, as money hoarded out of the State; that he made application to the commissioners’ court of the county to correct this assessment; that said court, after hearing the evidence adduced, reduced the assessment to $62,728, and imposed the costs on him ; that he then removed the proceedings, by certiorari, into the circuit court, and that the judgment of the commissioners’ court was there affirmed. The other material allegations of the bill are the following: “The testimony offered by complainant, in support of his motion before said commissioners’ court, was in substance as follows: That some time previous to the 1st March, 1862, he had shipped a portion of the cotton raised by him on his own farms, to Liverpool, England, by or through H. O. Brewer & Co.; that he afterwards heard of its arrival, and some time after that it was sold, but when sold he did not know; that about the 27th February, 1862, H. O. Brewer & Co. drew several bills of exchange on Brown, Shepley & Co., of Liverpool, England, amounting in the aggregate to about $62,225, payable eighty-five days after date; that these bills were sent to complainant, for or on account of the cotton which he had shipped to Liverpool; and were understood to be for the amount of the proceeds of the sale thereof; that they were sent from Mobile by mail, and, according to the best recollection of the witness, were not received at Selma before the 1st March, 1862, but were received, witness thought, after the 1st March; that said bills were not accepted, but were in complainant’s possession wben bis tax-list was made out, and wben tbe motion was tried; tbat tbe witness was not able to state bow or wbat was tbe mode of managing and settling up these shipments of cotton, and tbat complainant was a merchant in Selma and a planter. On this testimony, tbe said commissioners’ court decided, tbat tbe assessment should be corrected by reducing tbe same to tbe amount of tbe bills .of exchange, and rendered a judgment assessing complainant with tbe amountfor which said bills of exchange were drawn, as money boarded out of tbe State, and directed tbe tax-collector of said county to collect from complainant five per cent, on said amount, besides tbe county tax, (making nearly $6,000 on this item,) besides taxing complainant with tbe costs of tbe motion. “ Your orator further shows, tbat said commissioners’ court, in their judgment-entry, have failed to state all tbe facts proved before them on said motion, and state tbe facts incorrectly, and, in fact, show by their record tbat facts were proved which were not proved. Their record states, tbat the proof showed tbat complainant bad in tbe bands of Brown, Sbepley & Co., of Liverpool, England, on tbe 1st March, 1862, tbe sum of $62,225, tbe proceeds of cotton of bis before tbat time sold; and .that be bad in bis possession, on said 1st March, 1862, bills of exchange for tbat sum, drawn by H. O. Brewer & Co.,» on Brown, Sbep-ley & Co. Your orator says, tbat be is informed and believes tbat these things, so stated in said record, were not proved before said court; and be therefore charges tbat no such proof was made before said court, and tbat tbe record is false in this respect. Tbe record fails to show wben tbe said bills fell due; and your orator charges tbat tbe proof before said court distinctly showed tbat they fell due eighty-five days after date, and tbat all of them bore date tbe 27th February, (except one, which bore date tbe 19th February,) 1862; and be therefore charges tbat tbe record fails to speak tbe truth in this respect. “Your orator further shows, tbat be applied by petition to the Hon. Porter King, a judge of tbe circuit court, for a certiorari, which was granted; tbat be truly stated tbe facts in said petition, as be then understood tbem; tbat be bas since learned more of tbe facts connected witb tbe mode of shipping cotton to Liverpool, and of selling cotton so shipped, and of rendering tbe accounts for tbe proceeds, and of tbe mode in which payment is made, and bas endeavored to state tbem in this bill, for tbe purpose of enabling this honorable court to understand the nature of bis ease; tbat on said petition said circuit court required tbe said commissioners’ court to send tbe said cause into said circuit court for trial, which was done; tbat your orator appeared in said circuit court, at its last term, and proposed to try said cause de novo, and moved tbe court to allow him to introduce evidence to establish tbe facts of tbe case; but tbe court overruled bis motion, and decided tbat be should try tbe cause on tbe record by assignment of errors ; tbat he then, by bis attorney, bad for tbe first time discovered tbe error and defects in tbe record, and moved said court for a certiorari, to enable him to move said commissioners’ court to correct their said record, so tbat it should speak tbe truth, and only tbe truth; but tbe court refused to allow him this privilege, and be was then required to assign errors on tbe record, and try thereon; and tbat said circuit court, on said record, affirmed tbe judgment of said commissioner’s’ court.” The chancellor sustained a demurrer to tbe bill, for want of equity, and bis decree is now assigned as error. Bybd & MORGAN, for appellant. M. A. Baldwin, Attorney-General, and Geo. W. Gayle, contra. [MAJORITY — A. J. WALKER, C. J.] A. J. WALKER, C. J. Tbe complainant, having been assessed witb a tax on $100,000 boarded, applied to tbe court of county commissioners to correct tbe assessment. Tbat court, overruling the appbeation to be absolved entirely from tbe assessed tax on money boarded, held that tbe assessor bad committed an error in bis determination of tbe amount to be taxed, and adjudged tbat $62,728 was tbe correct amount to be assessed. Tbe judgment of tbe court of county commissioners was carried by certiorari to tbe circuit court for revision, and was by that court affirmed. We tbink tbe court of county commissioners bad authority to revise the assessment, and ascertain whether there was error in it, and by its judgment define that error. Whether it had authority to go farther, and correct the error, it is not necessary here to decide. The law from which we draw our conclusion is the 14th section of the act of 9th December, 1862, in the words following: “ It shall be the duty of the commissioners’ court of the several counties to revise and compare the assessment list; and if, in their opinion, there is any omission, discrepancy, irregularity, or error, in the assessment or valuation of property, profits, or salaries, they, shall, so far as to any supposed omission, discrepancy, irregularity, or error, direct a re-assessment to be made, either by the assessor, or such other person or persons as they may deem most suitable and competent.” If the court exceeded its authority, as bestowed by this statute, it was in correcting the error itself, instead of directing it to be done. This was, in this case, an immaterial matter; for the nature of the error is such, that to point it out made the correction of it a mere ministerial duty. We leave out of view, in determining the question of authority or jurisdiction, sections 440 and 441 of the Code; because, in referring the authority to them, we encounter the question, whether a court, convened at any other time than the second Monday in January, can exercise the powers therein bestowed; and this question we wish to avoid, leaving it open and undecided. We have entertained doubts whether the act of 1862 refers to assessments made under the previous laws ; but we think the better opinion is that it does, and we so decide, without argument, as the counsel on both sides agree that such position is correct. What we have said brings us to the conclusión, that the judgment of the court of county commissioners, defining the extent of the error in the assessment, was the judgment of a court of competent jurisdiction, which was afterwards affirmed. This judgment was rendered in a proceeding commenced and prosecuted by the complainant himself, and binds him, unless it is reversed in a revising court, or is set aside by the chancery court, upon some ground recognized in that forum. The bill is framed with a view to this position, and alleges that the facts, as recited in the judgment-entry of the court of county commissioners as the predicate of its decision, do not represent the case as made before that court fully or correctly; and that therefore the complainant could not successfully revise the judgment in the circuit court. We are not sure that the diversity between the facts as alleged in the complainant’s bill, and as recited by the judgment-entry, is a material, matter. But let it be conceded that it is; the complainant then occupies the position of one against whom a judgment has been rendered, in which there was error available in a court of law, and of which he was prevented from availing himself by the failure of the court which rendered the judgment to recite fully and correctly the facts upon which its judgment was founded. The complainant can come into chancery, to set aside the judgment, because he was prevented from obtaining relief at law by the cause above stated, only when the prevention was the result of “ fraud, accident, or the act of the opposite party, unmixed with fault or neglect on Ms part.” McCollum v. Prewitt, 37 Ala, 573; French v. Garner, 7 Porter, 549. The complainant is not alleged by his bill to have called the attention of the court of county commissioners, during its sitting, to its defective statement of the facts, and asked a correction or amendment of that statement, or to have presented, by way of bill of exceptions or otherwise, a correct statement of those facts. On the contrary, he states in his bill, that he was ignorant that the statement of facts was incorrect and defective, until the cause came up in the circuit court. With these things, presented in the bill, we cannot say that the prevention of a fair revision in the circuit court was “ unmixed with fault or neglect” on the part of the complainant.—Stein v. Burden, 30 Ala. 270. The complainant alleges the discovery of some new facts after the judgment was rendered. If those facts were at all material, the failure to discover was the result of the most obvious inattention and neglect. Whatever may have been the rights of the complainant in the court of law, be bas alleged no sufficient reason for coming into chancery to set aside the judgment against him in the court of county commissioners. So far as the action of the circuit court is concerned, if it erred, the remedy was an appeal to this court; and no excuse is averred for the failure to resort to it. The bill contained no equity, and the chancellor was right in dismissing it. The decree is affirmed.