Robertson v. Harrison County , 127 Miss. 281 ( 1921 )

Smith, O. J.,

delivered the opinion of the court.

This is an action at law in 'which the appellant seeks to recover from the appellee commissions on certain taxes which he claims to have coerced the First National Bank of Gulfport into paying to the appellee’s treasurer. The declaration alleges that on the 21st of June, 1917, the ap-pellee instituted a suit against the First National Bank for taxes it was then due to the appellee for the year 1916, and that thereafter, while the said suit ivas pending, the bank paid the taxes to the sheriff of Harrison county, and because of which the appellant became entitled to his commission of twenty per cent on the amount of taxes so paid by the bank. To this declaration the appellee filed a plea styled a “plea in abatement,” but which is in effect a plea in bar, and which will be found set forth in full in the report of a former appeal herein in 83 So. at page 617, the substantial allegations of which are that the First National Bank had appealed to the circuit court of Harrison county from the order of the board of supervisors approv-. ing the assessment of its property for the year 1916, which was then pending, and that in event the bank should be successful in obtaining a reduction of its assessment, the county would have to refund to it the taxes paid on the assessment thus held to have been erroneous.

This plea was demurred to by the appellant, the demurrer was sustained, and, the appellee declining to plead further, judgment was rendered against it for the amount sued for, from which the appellee appealed to this court, and the judgment appealed from was reversed and the cause remanded. See Harrison County v. Robertson, Revenue Agent, 83 So. 617.

On the return of the cause to the court below, the appellant filed a replication to the appellee’s plea which, stripped of its irrelevant matter, set forth that, the appeal of the First National Bank from the assessment of its property made by the board of supervisors had been dismissed by the bank, and that there was therefore no longer another cause pending involving the subject-matter of the present controversy. A demurrer to this replication was sustained, and the cause was dismissed, from which judgment the revenue agent appeals.

On the former appeal this court decided that if the facts set forth in the appellee’s plea are true, the revenue agent is not entitled to the commissions here sought to be collected, for the reason that he was without authority to sue the hank for its taxes while its appeal from the assessment therefor was pending, from which it necessarily follows that the dismissal by the bank of its appeal can have no bearing on the right of the appellant to recover the commission sued for.

The court committed no error in sustaining the demurrer and dismissing the cause.

Affirmed.