Opinion
No. 31666.
April 15, 1935. Suggestion of Error Overruled April 29, 1935.
1. HIGHWAYS.
Declaration in city's action against county for half of road taxes collected by county stated no cause of action for taxes collected before adoption of statute eliminating requirement of resolution notifying county of city's intention to claim half of such taxes, in absence of allegation that such resolution was passed and filed with board (Code 1930, section 603).
2. JUDGMENT.
City, suing county for half of road taxes collected before and for year of adoption of statute eliminating requirement of resolution notifying county of city's intention to claim such taxes, without alleging in declaration that such resolution was passed and filed with county board, held not entitled to default judgment for entire amount sued for or amount collected for year in which statute was adopted without writ of inquiry to ascertain amount collected after its adoption (Code 1930, section 603).
APPEAL from the circuit court of Neshoba county.
HON. D.M. ANDERSON, Judge.
Action by the City of Philadelphia against the Board of Supervisors of Neshoba county. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
S.B. Cooper and Richardson Sandford, all of Philadelphia, for appellant.
This is a judgment by default. The judgment recites that the attorney withdrew the plea of general issue and it strikes us that this leaves the case in the same status as if no appearance had been made.
The declaration wholly fails to state a cause of action for one-half of the ad valorem road taxes for the years 1928 and 1929, because the declaration is fatally defective as to these two items.
Where a complainant wholly fails to state a cause of action, a default judgment may not be taken therein.
Odom v. Gulf Ship Island Railroad, 101 Miss. 64, 57 So. 626.
A default judgment can only be sustained where the declaration contains averments showing a clear right to recover. Nothing will be assumed as proof beyond what is shown in the fact of the declaration.
Penn Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736.
As we see it this case should be reversed with leave of plaintiff to amend its declaration.
In Insurance Co. v. Keeton, 95 Miss. 708, 49 So. 736, the court held that the statute of jeofails does not apply so as to cure all defects prior to verdict where the declaration fails to show a right to recover.
Odom v. Gulf Ship Island Railroad Co., 101 Miss. 642, 57 So. 626.
It being a universal rule of law that the declaration must be construed most strongly against the pleader, we must assume that the pleader alleged in his declaration the facts as they actually exist. The declaration not having alleged that a resolution was passed by the municipal board claiming its one-half of the funds sued for, for the years 1928 and 1929, we must assume that no such resolution was passed, and therefore, no right to recover existed for those two years.
Town of Ackerman v. Choctaw County, 128 So. 757; City of Okolona v. Chickasaw County, 157 So. 690; Gully v. Copiah County, 147 So. 300.
J. Morgan Stevens, of Jackson, for appellee.
The judgment appealed from affirmatively recites that the process was duly and legally served, and furthermore that the defendant actually appeared and filed a plea and obtained a continuance of the case for the term. Certainly no litigant can trifle with the court by appearing in the court and filing a plea and deliberately standing by and permitting a judgment to be taken for the want of a further plea, prosecute an appeal to the Supreme Court and say now that no process was served.
It is well settled, as a general rule, that, where the bill, declaration, complaint, petition or statement states a cause of action, it cannot be objected for the first time on appeal or error that it is insufficient, or that there are technical or formal defects therein.
3 C.J. 779; Winn v. Levy, 2 How. 902; Claiborne v. Planters Bank, 2 How. 727; Yazee Miss. Valley Railroad Co. v. Scraag, 36 So. 193.
Section 600, Code of 1930, known as the statute of jeofails, is directly applicable. It expressly refers to a judgment after verdict and a judgment by default.
If objection to defects in the pleadings and proceedings be not made at the proper time, it will be too late after verdict and judgment to object thereto.
Grubbs v. Collins, 54 Miss. 485; Trustees v. Gilman, 55 Miss. 148; Moble v. Terrell, 64 Miss. 830, 2 So. 14; Hargrove v. Thompson, 31 Miss. 211; Bank v. Buddig, 65 Miss. 284, 4 So. 94; Black v. Washington, 65 Miss. 60, 3 So. 140; Yazoo, etc., R. Co. v. Schraag, 84 Miss. 125, 36 So. 193; Binn v. Stokes, 27 Miss. 239; Keystone Lbr. Yard v. Yazoo R. Co., 94 Miss. 192, 47 So. 803; Westerfield Weeks v. Catlett, 120 So. 458; Hooks v. Burns, 152 So. 469; 33 C.J., p. 1134, and footnote 96, p. 1133; Federal Credit Co. v. Grocery Co., 153 Miss. 494, 121 So. 114; Richmond D.R. Co. v. Jones, 14 So. 786, 102 Ala. 212; Barfield v. Evans, 65 So. 928, 187 Ala. 579; Western Union Tel. Co. v. Baker, 69 So. 246, 14 Ala. App. 208; Ex parte Western Union Tel. Co., 70 So. 633, 195 Ala. 359; Hall v. First Bank of Crossville, 72 So. 171, 196 Ala. 627; Lunsford v. Marx, 106 So. 336, 214 Ala. 37; McGraw v. Court of County Com'rs, 8 So. 852, 89 Ala. 407; Nelson v. Boe, 148 So. 311, 226 Ala. 582; Estes v. Bank of Walnut Grove, 159 So. 104; Porter v. East Jordan Realty Co., 177 N.W. 987, 11 A.L.R. 963.
The trial court in this case did the only thing that it could have done, that is, enter judgment for the want of a plea for the full amount sued for with interest and costs.
We do not understand learned counsel to challenge the sufficiency of the declaration, so far as the demand made for the taxes for the year 1930.
Gully v. Board of Supervisors of Copiah County, 147 So. 300; City of Okolona v. Chickasaw County, 157 So. 690.
The city of Philadelphia, appellee here, filed its declaration against Neshoba county setting forth that it is a municipality, located within and constituting a part of that county, and that the board of supervisors of the county, acting as a taxing body, levied an ad valorem tax for road purposes on all taxpayers within the county for the years 1928, 1929, and 1930. It set forth the amount of the ad valorem tax collected for road purposes for each year separately, and averred that the city of Philadelphia was entitled to recover one-half of the amount so collected for each of these years, for the reason that the streets of said city were, during those years and are now, worked at municipal expense. It was averred that frequent demands had been made upon the county to pay the amount to which said municipality was entitled, and a judgment was demanded for one-half of the ad valorem taxes so collected for road purposes or each of said years, amounting to five thousand, five hundred three dollars and sixty-eight cents with interest and costs.
At the return term of the cause, the board of supervisors appeared and filed a plea of the general issue. At the next succeeding term, the board of supervisors withdrew its plea and declined to plead further, and thereupon a judgment by default was entered in favor of the city for the amount sued for with interest and costs, and thereafter the board of supervisors prosecuted this appeal.
The appellant contends that the declaration is wholly insufficient to sustain a judgment by default, for the reason that it does not allege that the city had by resolution notified the board of supervisors that it would claim one-half of all road taxes collected therein for the years 1928 and 1929. Appellee contends that since, after the adoption of the Code of 1930, a resolution by the municipality notifying the county of its intention to claim one-half of the taxes collected therein was no longer necessary, the declaration stated a good cause of action as to the taxes collected after November 1, 1930, and since the declaration was good as to a portion of the demand and would withstand a general demurrer, a default judgment entered thereon should be upheld notwithstanding the defects in the declaration as to other items included therein. In other words, it is contended that the declaration was amendable, and since no objection was interposed in the court below to the alleged defects therein, such objection cannot be made for the first time in this court.
It has been frequently held that in order to entitle a municipality to recover taxes collected therein for road purposes prior to November 1, 1930, it is necessary, as a condition precedent, for it to pass a resolution declaring its intention and purpose to claim such taxes, and to formally notify the board of supervisors of such resolution, and that a declaration seeking to recover such taxes which does not allege that such a resolution was passed and filed with the board of supervisors is defective and states no cause of action, but that as to taxes collected after November 1, 1930, no such resolution is required. Gully v. Board of Sup'rs of Copiah County, 167 Miss. 562, 147 So. 300; City of Okolona v. Chicksaw County (Miss.), 157 So. 690. Consequently, as to taxes sought to be recovered for the years 1928 and 1929, the declaration states no cause of action.
The right to recover taxes levied and collected for each of these years is separate and distinct, and the basis of recovery for the years 1928 and 1929 is entirely different from that for the year 1930, and, conceding for the purpose of this decision that the declaration herein states a cause of action for the taxes collected for the year 1930, if they were collected after November 1, 1930, still it does not necessarily follow that a default judgment for the entire amount sued for was correct. In the cases of Bradstreet Co. v. City of Jackson, 81 Miss. 233, 32 So. 999, Penn Mut. Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736, and Odom v. R. Co., 101 Miss. 642, 57 So. 626, it was held to be the settled rule that where a declaration fails to state a cause of action, or show a right to recover, a judgment by default cannot be sustained.
Aside from the fact that, under the pleadings in this case, the city was not entitled to recover anything for the years 1928 and 1929, for the year 1930 it was entitled to recover only the amount of taxes collected after the effective date of the Code of 1930, and the amount that was so collected was in no way made to appear. The amount of ad valorem taxes collected on property located in the city of Philadelphia, and particularly the amount collected after November 1, 1930, was wholly unliquidated, and since the cause of action is not found on an instrument in writing showing the sum due, or on an open account filed with the declaration showing the sum due, a judgment by default for the entire amount stated in the declaration, or for the amount of the 1930 taxes alleged therein to have been collected, without a writ of inquiry to ascertain the amount collected after November 1, 1930, was unwarranted. Section 603, Code of 1930.
The judgment of the court below will, therefore, be reversed and the cause remanded.
Reversed and remanded.