Moller-Vonderboom Lumber Co. v. Board of Sup'rs , 138 Miss. 289 ( 1925 )

^* Headnote 1. Taxation, 37 Cyc., p. 1115. At the August, 1923, meeting of the board of supervisors of Attala county a preliminary order was entered as to the assessment of taxes on the lands of the Moller-Vonderboom Lumber Company, as well as other citizens, from which interlocutory order the Moller-Vonderboom Lumber Company prosecuted an appeal to the circuit court. The circuit court dismissed said appeal, and upon appeal here the action of the lower court in dismissing the appeal was affirmed.

On October 3, 1923, the lumber company again presented its objections to the assessment of taxes to the board of supervisors of Attala county, and apparently on that day the objections were disallowed and the lumber company's contention denied, though no final order under section 10, chapter 323, of the Laws of 1920, was entered on that date. The final order approving the raise ordered by the tax commission as provided for in section 10 of said act was entered on the minutes on October 11, 1923.

On October 6, 1923, the lumber company had its appeal bond approved by E.W. Sullivan, clerk of the court, and on October 8, 1923, the lumber company again filed its appeal bond, and had same marked filed, referring to an appeal from the order of October 3, 1923.

On October 13, 1923, the lumber company had the appeal bond theretofore filed marked refiled by the clerk of the board of supervisors. The above bond appears to have been approved on October 6, 1923. The circuit judge dismissed the appeal of the lumber company because the bond was prematurely filed.

When this case was before this court before it was held that section 81 of the Code of 1906 (Hemingway's Code, section 61) must be considered in connection with section 19 of chapter 323 of the Laws of 1920, and that an appeal did not lie from the interlocutory order of the board of supervisors entered in the month of August at the equalization meeting of said board.

Adhering firmly to the opinion rendered by the court, then we are of the opinion here that the appellant attempted to appeal from the order of the board entered at the meeting of the board of supervisors which considered and entered the final order contemplated in section 10 of the above-named act, and that the preparation of the appeal bond in advance of the actual date of entry of said final order made at the same or an adjourned meeting of the board of supervisors operates to appeal the case from the levy of assessment by the board of supervisors to the circuit court.

This case is ruled by the case of James v. Woods, 65 Miss. 528, 5 So. 106. James, the defendant in a suit before a justice of the peace, prepared his appeal bond in anticipation of an adverse judgment by the justice of the peace. The sureties executed his appeal bond before the case was tried. The bond was dated and approved April 13, 1888, and the judgment against the defendant was not entered until the next day, April 14, 1888. The record was sent to the circuit court, and the appeal was there dismissed.

Appeal was prosecuted to this court, where the judgment of the circuit court was reversed, and in the opinion by Mr. Justice ARNOLD it is said:

"It is not perceived that the irregularity of the appeal bond, being executed and approved before the judgment appealed from was rendered, vitiated the bond. The bond had the effect which one regularly executed and approved would have had, and it was available to protect appellee for all the purposes contemplated by law in such case."

The difference between the case as presented here on this record and the case presented in Moller-Vonderboom Lumber Co. v. Board of Supervisors (Miss.), 99 So. 823, is, in this case, an effort is being made to appeal from the final judgment of the board of supervisors, while in the latter case the effort was to appeal from an interlocutory order, and this court held that no appeal would lie under the general statute of appeals; neither would same lie under the special act (section 10, chapter 323, of the Laws of 1920).

The appeal should not have been dismissed as the appeal bond in this case as filed on October 8, 1923, operated to effectually protect the appellant lumber company in its effort to appeal to the circuit court.

Reversed and remanded.