Summary
In City of Jackson v. McCardle's Estate, 189 Miss. 781, 198 So. 736 (1940), involving the 1939 assessment upon this same property, it was held that the assessor's return is to be treated as prima facie correct, and that the burden of proof on appeal is upon the party who seeks to overturn the action of the assessor.
Summary of this case from McArdle's Estate v. City of JacksonOpinion
No. 34314.
November 25, 1940. Suggestion of Error Overruled December 23, 1940.
TRIAL.
The return of the city assessor who assessed property of taxpayer was "prima facie" correct and the burden of proof on appeal to the circuit court from decision of city commissioners adopting the assessment was on the taxpayer who therefore had the right to open and close argument (Code 1930, sec. 62).
APPEAL from the circuit court of Hinds county; HON. JULIAN P. ALEXANDER, Judge.
W.E. Morse, of Jackson, for appellant.
The court erred in refusing to grant a mistrial to the City of Jackson when the court permitted the appellee, who was appealing from a tax assessment, to have the opening and closing of the argument before the jury.
The burden of proof was on the City to establish the tax. This conferred a right to the appellant to have the opening and closing. The party on whom the burden of proof rests may be determined by considering which would succeed if no evidence were offered by either side, and by examining what would be the effect of striking out of the record the allegations to be proved.
Porter v. Still, 63 Miss. 357.
The appellee took the position that because of the fact he was appealing from the assessment that the only question reviewable would be whether the taxes were excessive or not. But when the statute states that the controversy shall be tried anew in the circuit court, it simply requires the municipality to go ahead and to establish the value of the property in the circuit court, and also establish the validity of its proceedings had before the municipal board.
Sec. 62, Code of 1930; Town of Union v. Buckwalter, 136 Miss. 414, 101 So. 561; Miss. State Highway Com. v. Herman, 195 So. 679.
If the city were allowed to take the property without proper and legal assessments and establishing the fact that they are legal assessments, there would be a taking of property without due process.
Harold Cox, of Jackson, for appellee.
The record does not in any manner show how the appellant was injured or could have been injured by depriving its counsel of the opportunity to speak last before the jury. It is a mere conclusion of appellant's counsel set forth in its behalf under such circumstances that the appellant was so thus injured by such procedure. It is not apparent from the record or the contention made in appellant's behalf as to just what the appellant would have said in his closing argument that he could not say and did not say in his opening argument to the jury.
Lamar Hardwood Co. v. Case, 107 So. 868, 143 Miss. 277.
This is not a case where the equalizing board changed the assessment as made by the tax assessor. In the case at bar, the equalizing board made no change whatever in the assessment of this property as made by the tax assessor. The order of the equalizing board is not prima facie correct, but the assessment is prima facie correct. The equalizing board therefore assumed no burden with respect to their judgment in fixing the value of the property in suit because they adopted the valuation placed thereon by the assessor. If the equalizing board had changed the assessment, indeed the burden of proof would have been on them, but having made no change therein, the burden of proof was on the appellee who attacked the assessment as approved by the equalizing board.
Since the statute treats the assessment as made by the tax assessor as prima facie correct, the burden of proof is on him who asserts the incorrectness thereof. The appellant in this case asserted the correctness thereof by adopting such valuation as made. The appellee in this case made the only attack on the assessment, and consequently under this decision had the burden of proof, and was properly given the right to open and conclude the argument. The assessment stood as made and was valid except for appellee's contention that the valuation was excessive. Manifestly, under such circumstances, the onus was on the appellee to substantiate such attack by competent evidence.
Porter v. Still, 63 Miss. 357; Whittle v. City of Hattiesburg, 132 Miss. 808, 96 So. 741.
Argued orally by W.A. Bacon, for appellant.
Lot 47, Hobson Survey, in the City of Jackson, the property of appellee, was assessed for the year 1939 by the city assessor at $122,100. Appellee estate filed its written protest or objection, urging that the assessment was too high, and contending that the assessed valuation should not exceed $45,574.66; but the city commissioners rejected the protest and adopted the assessment without change. The estate appealed to the circuit court under Section 62, Code 1930, and there was a trial de novo. The jury fixed the value at $80,000, and the City has appealed to this court.
The trial court held that the burden of proof was on appellee owner and allowed its attorney to open and close the argument. The City has assigned this as error, and it is towards that point that a large part of the briefs has been directed.
The case Whittle v. City of Hattiesburg, 132 Miss. 808, 96 So. 741, discloses the reasoning on which decision here will properly rest. That case, when followed through, is to the effect that the assessor's return is to be treated as prima facie correct, and that the burden of proof on appeal is on the party who seeks to overturn the action of the assessor. That is what the municipal equalizing board sought to do in the Whittle case; and it was held that the burden of proof was on the municipality and that in the absence of proof the assessment would stand as the assessor had returned it. In the case now before us, the owner or taxpayer sought to overturn the action of the assessor, and, in consequence, the burden of proof was on the owner with the attendant right to open and close the argument.
We have examined the other assignments and find that no reversible error is shown.
Affirmed.