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[3] Nor was it necessary that the railroad company should have any notice that this nunc pro tunc Order Was about to be made. The railroad company had no concern in Who should be appointed administrator of Morgan; the only person whose wishes it Was necessary to consult had requested the appointment of Hobbs. If it was sought to enter a nunc pro tunc judgment in a case as was attempted in Montgomery V. Viers, Supra, it is manifest that the person against whom the nunc pro tunc judgment was about to be entered should have notice of what Was going to be done, because his rights would be immediately and directly affected by the entry of the nunc pro tunc judgment against him, and so it would be proper to give notice in any state of case in which the entry of the nunc pro tunc order might affect the rights of strangers to the record. In other words, if it is necessary that a person Should have notice of the entry of an Order or judgment if the Order or judgment had been entered When it should have been, then it is necessary that he should have notice of the making of a nunc pro tunc order to take the place of the Omitted Order. But if it is not necessary that a party should have notice of the entry or making of the original Order When it should have been entered or made, neither Will it be necessary to give Such party notice of the entry or making of the nunc pro tunc order to take its place.

It is further insisted by counsel for the railroad company that it does not appear that the Lee County Court Was in Session in February 13, 1915, and therefore the nunc pro tunc order actually made on September 15, 1916, could not be put on the order book Of the Court On a day when the court Was not in session. The county court can hold sesSion every judicial day in the year, and on any of these days enter an order appointing an administrator. On February 13, 1915, the court, except for oversight or inadvertence, COuld and WOuld have made the Order ShOWing the appointment and qualification of Hobbs as administrator, and, this being so, We find no objection to postdating the nunc pro tunc Order to correspond with the date when it should have been made.

[4] Passing now to other matters, We find it insisted by counsel for the administrator that the 10Wer Court Should be directed, On a return of the case, to enter a judgment on the Verdict in View of the fact that the lower Court Overruled the motion and grounds for a new trial. In the present condition Of the record, it Would be manifestly unjust to comply With this request, because none of the evidence heard on the trial except that relating to the nunc pro tunc order has been brought to this court, and therefore We are unable to say whether the trial court properly overruled the motion and grounds for a new trial. The railroad company, after the Court had declined to enter a judgment on the verdict, and especially after it had sustained its motion to dismiss the petition, had nO reaSOn to prosecute an appeal to this court or bring any part of the record here. Indeed, it could not have prosecuted an appeal because there was no judgment against it to appeal from. The Only matter before us On this appeal is the question involving the ruling of the court in respect to the nunc pro tunC Order.

Nor is it quite clear from the record Whether the trial Court Was influenced to Overrule the motion and grounds for a new trial because it had disposed of the case by dismissing the petition, or because after hearing and considering the motion and grounds for a new trial it believed they should be overruled. Therefore, on the return of the case, the trial court Will set aside so much of the order or judgment as dismissed the petition, and will enter a judgment on the verdict, and then either overrule or sustain the motion and grounds for a new trial as Seems to it right and proper. After the motion and grounds for a new trial have been disposed of by a new order, then the party complaining of the ruling of the court on the motion and grounds for a new trial Will follow the usual practice in Such cases in order to bring the case to this court if it is desired to prosecute an appeal.

Wherefore the judgment is reversed, with directions to proceed in conformity with this opinion.

(181 Ky. 49)

SEVIER'S EX'X et al. v. COMMONWEALTH.

(Court of Appeals of Kentucky. June 11, 1918.)

1. TAXATION &905(1)—INHERITANCE TAx— ACTION.—APPROVAL BY AUDITOR-STATUTES. Under Ky. St. § 4258, authorizing the auditor of public accounts to appoint a supervisor of revenue agents whose duty shall be to supervise the action of each revenue agent in the state, and providing that no action or proceeding shall be instituted by any revenue agent until it is approved by the supervisor or the auditor, the commonwealth's action for an inheritance tax, the petition bearing indorsement of approval by the supervisor of revenue agents, was maintainable, though not authorized di# '' the auditor in compliance with section

2. TAXATION &S99 – INHERITANCE TAX SETTLEMENT WITH SHERIFF-STATUTE. The sheriff being authorized to accept payment of and to receipt for inheritance taxes only after the property liable has been valued, or if there is no question of value, and having no authority to fix the value of property for purposes of such taxation, a duty imposed, by Ky. St. § 4281k, on appraisers appointed by the ..county court whenever the value is uncertain, a decedent's estate's settlement with the sheriff, made after the commonwealth's suit for the disputed inheritance tax was instituted, was not a full accord and satisfaction of the commonwealth’s claim for the tax. 3. TAXATION 6:906 – INHERITANCE TAX SETTLEMENT WITH SHERIFF. If the value of the property of a decedent's estate were certain, the sheriff could not, by acceptance of the amount of inheritance taxes due, relieve a delinquent party of liability for penalties which had accrued and were due the revenue agents in the commonwealth's action

for the tax, already instituted.

4. TAXATION 3->905(1)—INHERITANCE TAXIGNORANCE OF LAW. Neither ignorance of the law on the part of the property owners, nor that of the assessing officers, nor the latter's failure to perform their duty, can be urged as a defense to an action to enforce the assessment of omitted property and the collection of inheritance taxes due the commonwealth, or the penalties due the revenue agent for his services in compelling the assessment of the omitted property and payment of taxes due thereon.

5. TAXATION 3-9905(1)—INHERITANCE TAXAPPOINTMENT OF APPRAISER-STATUTE.

After the commonwealth’s suit to ascertain and have certified for collection the amount of an inheritance tax had been instituted, it was not the duty of the court to appoint an appraiser to fix the value of the real estate under Ky. St. § 4281k, which applies to ex parte proceedings, and is without application when a suit has been filed by a revenue agent, as all issues raised in such an action, by sections 4241, 4260, are to be tried and determined by the court.

6. TAXATION 3:905(1)—INHERITANCE TAXVALUATION OF REALTY. The valuation of realty fixed by the board of supervisors of the county for the year after the death is not conclusive of value in the commonwealth’s action to ascertain and have certi, fied for collection an inheritance tax, the statute expressly providing for a different method of assessing property subject to inheritance taxes, by different officials, and regardless of its assessment for ordinary taxes.

7. TAXATION 3-9905(1)—INHERITANCE TAXACTION-TRIAL BY JURY. In the commonwealth’s action to ascertain and have certified for collection an inheritance tax, the circuit court erred in submitting to a jury the question of the value of the realty over the objection and exception of defendants, executrix, and devisees.

8. TAXATION 3:9905(1)—INHERITANCE TAXACTION TO COLLECT-TRIAL DE NOVO ON APPEAL-STATUTES. By the express provisions of Civ. Code Prac. §§ 700, 726, and Ky. St. §§ 4241, 4260, On an appeal to the circuit court from the county court in proceedings for the listing of omitted property for taxation, such as an action by the commonwealth to ascertain and have certified for collection an inheritance tax, the trial is to be de novo, and, though plaintiff cannot amend his pleading so as to set up a new and independent cause of action, defendant has the right to make all the defenses he has, and it is Within the discretion of the circuit court in which the appeal is pending for trial de novo to allow the defense to be changed or a new defense to be made as if the case had been originally brought in that court.

Appeal from Circuit Court, Clay County.

Action by the Commonwealth of Kentucky against William H. Sevier's executrix and Others. From the judgment, defendants appeal, and plaintiff cross-appeals. Affirmed On the CrOSS-appeal, and On the Original appeal reversed and remanded for proceedings consistent with the opinion.

Rawlings & Wright, of Manchester, and John H. Wilson, of Barbourville, for appellants. A. T. W. Manning and Manning & Lyttle, all of Manchester, for the CommonWealth.

CLARKE, J. William H. Sevier died testate in November, 1913, a resident of Clay county, and by his will devised his property, both real and personal, to collateral kindred. This action was instituted in the Clay county court November 16, 1916, three years after Sevier's death, for the commonweath by a revenue agent against the executrix and devisees of decedent to ascertain and have certified to the Sheriff for collection the amount of the inheritance tax due the Commonwealth from his estate, the several items of property being described and valued separately, and the value of the personal property alleged to be $8,439.35 and that of the real estate, $12,000. The petition was indorsed:

“This suit is approved. L. B. Greene, Su pervisor of Revenue Agents, November 14, 1916.”

The defendants, after a demurrer to the petition had been Overruled, filed answer, in which they did not deny any of the allegations of the petition, but set up, as a defense to the action, a settlement which they had made with the sheriff of Clay county after the suit had been filed, and the payment to him of the amount of the inheritance tax due the commonwealth, as determined by that Settlement, for Which he had given them his receipt. A demurrer to this answer was sustained, and, upon their refusal to plead further, judgment Was entered, fixing the Value of the property as alleged in the petition and directing the clerk of the court to certify to the sheriff for collection the amount of the tax and penalties due under the law upon such valuations, less the amount theretofore paid to the Sheriff under the attempted Settlement. From this judgment, defendants appealed to the circuit court, where they renewed their demurrer to the petition, which was again overruled, and they were permitted to file an amended answer, over the objection and exception of plaintiff, in which they allege: (1) That when this action was filed, and at the time of the settlement with and payment to the Sheriff Set Out in their Original answer, the county clerk did not have and was not keeping a book in which to reCord the Values of inheritances, devises, bequests and Other interests subject to the payment of taxes, as required by Section 42810, Kentucky Statutes; that the Clay county Court had not appointed any appraiser Or appraisers to value the land, as required by section 4281k, Kentucky Statutes; that the County clerk had made no Statement to the Sheriff, as provided by section 4281p, covering the inheritance tax due from the estate of William H. Sevier; that the sheriff had not notified the county attorney, as required by section 42810; that the county attorney had instituted no Suit to collect the inheritance tax due from decedent'S eState; and that appellants and the county Officials alike were ignorant of the inheritance tax law and its requirements. (2) That the value of decedent’s real estate, at the time of his death, did not exceed $3,000. (3) That the board of supervisors of Clay county fixed the value of decedent's real estate for taxation for 1914 at $2,600; and that this action of the board of Supervisors “fixed, concluded, and determined the value of such real estate upon which plaintiff should collect the inheritance tax.” Upon motion of plaintiff, after its demurrer to the answer as amended had been Overruled, every allegation of the amended answer was stricken except the allegation, “They say that the value of Said real estate at the death Of Said William H. Sevier did not exceed in value $3,000”; and the court, upon its own motion, entered the following Order: “Ordered that this cause be assigned to the 17th day of the present term of this court for trial as to the value of the lands of decedent,

William H. Sevier, as of the date of his death, November, 1913, before a jury”

—to which ruling of the court both plaintiff and defendants excepted. The Value of the land at the time of Sevier's death, the only issue of fact, was submitted to a jury and by them fixed at $6,000, whereupon the court entered a judgment, remanding the case to the county court, With directions to enter a judgment assessing the personal property at $8,439.35 and the real estate at

$6,000; and that the same be certified by the clerk of the Clay county court to the sheriff for collection of the taxes due thereon, together with interest and penalties, as directed in the judgment appealed from, which gave defendants credit for the amount they had paid to the sheriff. From this judgment, defendants have appealed, and plaintiff has prosecuted a cross-appeal. [1] 1. The first reason urged upon us by defendants for a reversal is that the action was not authorized by the auditor, as required by section 4263—4, Kentucky Statutes. The petition bears the indorsement of the approval by the Supervisor of revenue agents, whom the auditor is authorized to appoint by section 4258, Kentucky Statutes, and whose duty, it is therein prescribed, Shall be to Supervise the action of each revenue agent in the state; “and no action Or proceeding shall be instituted by any revenue agent until the same is approved by said supervisor or the auditor of public acCOuntS.” It Will therefore be seen that it is expressly provided by statute that the required approval by the auditor, before the institution of an action by a revenue agent, may be made either by the auditor himself or his appointee, the supervisor of revenue agents, whose duty it is to Supervise such agents; and the approval by the latter was all that Was required. [2, 3] 2. The next insistence is that the settlement With the sheriff, made after the Suit was instituted, Was a full accord and Satisfaction of the claim sued on. This contention is manifestly without merit, since the sheriff is authorized to accept payment of and receipt for inheritance taxes only after the property liable to such taxes has been Valued, or about the Value of Which there is no question, and he has no authority to fix the value of property for the purposes of Such taxation, this duty being imposed by section 4281k, Kentucky Statutes, upon appraisers appointed by the county Court Whenever the Value is uncertain. When Such a Valuation has not been fixed and the amount certified to the collecting officer before the expiration of the time in Which Same is required to be done and the taxes paid thereon, revenue agents are expressly authorized, by an act approved March 24, 1916, upon the approval of the auditor, to institute an action Such as this one to secure the assessment and certification to the proper collecting officer of property thus omitted; and the sheriff has no authority, either before Or after the institution of such an action, to fix the value of such property for the purpose of determining the amount of inheritance taxes due thereon. Nor could he, even if the value of the property Were Certain, by the acceptance of the amount Of taxes due, relieve a delinquent party of liability for penalties which had theretOfore accrued and Were due the reVenue agent in an action already instituted.

[4] Appellants also contend in this connection that they were ignorant of the law, as were also the county officials who failed to perform their duties in reference to the asSeSSment and certification of decedent's property for the inheritance tax, and that they therefore, ought not to be charged with penalties. It Surely needs no argument or citation of authority to prove that neither ignorance of the property owners nor that of the aSSeSSing Officers, nor the failure of the latter to perform their duty, can be urged as a defense to an action to enforce the assessment of omitted property and the collection of the taxes due the State, Or the penalties due the revenue agent for his services in compelling the assessment of the omitted property and payment Of the taxes due thereon.

[5] Equally Without merit is the argument that, after this suit had been instituted, it was the duty of the court to appoint an appraiser to fix the value of the real estate under Section 4281k, Kentucky Statutes, as this Section evidently applies to ex parte proceedings, as is shown by provision for notice by mail to all known interested parties, and has no application. When a Suit has been filed by a revenue agent, since all issues that are raised in such an action are, by Sections 4241 and 4260, to be tried and determined by the court. Stearns Coal & Lumber Co. v. Commonwealth, 167 Ky. 51, 179 S. W. 1080; Commonwealth V. Leslie County, 174 Ky. 10, 191 S. W. 657.

[6] 3. The contention of appellants that:

the Valuation Of the real estate fixed by the board of Supervisors of Clay county for 1914 is conclusive of its Value in this action is clearly untenable, since the statute expressly provides for a different method of assessing property subject to inheritance taxes and by different officials and regardless of its assessment for Ordinary taxes. It is therefore apparent that the only defense or issue raised by the amended answer was as to the value Of the real estate, and the COurt did not err in striking out all other allegations. [7] 4. The next objection of the defend

ception of the defendants.

ants is that the circuit court erred in submitting to a jury the question of the value Of the real estate, over the objection and exIn Stearns Coal & Lumber CO. V. Commonwealth and Commonwealth V. Leslie County, Supra, this question was considered, and it was held that the provisions of the statute nowhere give room for the intervention of a jury, and that a trial by a jury, over the objection of the appellant, was a denial of a trial as provided by law. AS this Will necessitate a reversal of the judgment, it is not necessary to consider the evidence before the jury upon the question Of the Value of the land. [8] 5. Upon the cross-appeal, it is insisted by plaintiff that the defendants were limited, upon appeal to the circuit court, to the defenses presented in the county court, and that the court erred in permitting defendants to file the amended answer contesting the Value of the real estate alleged in the petition. This contention cannot be sustained, Since, under the express provisions of Civil Code, §§ 700, 726, and Kentucky Statutes, §§ 4241, 4260, on an appeal to the circuit court from the county court, in proceedings such as this for the listing of omitted property for taxation, the trial is to be de novo (Commonwealth v. Reed, 121 Ky. 432, 89 S. W. 294, 28 Ky. Law Rep. 381); and, while plaintiff Cannot amend his pleading SO as to Set up a new and independent cause of action, Since the action to be tried on the appeal must be the same as Was tried in the lower court, the defendant has the right to make all the defenses he has, and it is within the discretion of the court in which the appeal is pending for a trial de noVO to allow the defense changed or a new defense to be made as if the case had been Originally brought in that court. Willis V. McNeal, 8 Ky. Law Rep. 411; Southern Lumber Co. v. Wireman, 41 S. W. 297, 19 Ky. Law Rep. 585; Roberts V. Abner, 42 S. W. 337, 19 Ky. Law Rep. 887. Wherefore, the judgment is affirmed upon the CrOSS-appeal, and upon the Original appeal is reversed and remanded for proceed ings consistent herewith.

(181 Ky. 183)

WINBURN W. COMMONWEALTH, (Court of Appeals of Kentucky. June 18, 1918.)

1. CRIMINAL LAW 3:1144(6)–APPEAL-PRESUMPTIONS-RECORD. Order overruling a motion for change of venue, showing that hearing was had on the motion, raised the presumption on appeal that evidence was introduced thereon. 2. CRIMINAL LAW (3:1117 — APPEAL - SCOPE OF REVIEW. The court, on appeal from denial to accused of a change of venue, cannot review the propriety of the order in the absence of the evidence, where it appears that a hearing was had on the motion at which evidence was introduced. 3. HOMICIDE 3:179—EVIDENCE—INSANITY OF PARENTS. To authorize admission of evidence of insanity in the family of accused there must be independent testimony to show that accused was himself insane at the time of the homicide. 4. CRIMINAL LAW Q->889 - TRIAL – CORRECTION OF VERDICT. . Since if the verdict does not conform to law it is proper to have the jury reform it before its discharge, where jury found “defendant, Jim Winburn, guilty, and fix his punishment at 99 years, without a pardon,” it was proper to require a reformation to read “We, the jury, find the defendant, James Winburn, guilty, and fix his punishment at confinement in the penitentiary for life, without pardon.” 5. CRIMINAL LAW &886—VERDICT-RECOMMENDATION. Jury’s verdict of guilty with punishment of imprisonment, without pardon, was as to the words “without pardon” a mere recommendation not invalidating the verdict, and such recommendation could be disregarded by the court. 6. HOMICIDE. S->313(4) — VERDICT – SUFFICIENCY. In prosecution for murder, where jury was told that if it found accused guilty of murder his punishment should be death or confinement in the penitentiary for life, a verdict of guilty with imprisonment for life was sufficient under Cr. Code Prac. § 257, subd. 2, though it did not specifically find accused guilty of murder. 7. CRIMINAL LAW (3:2822(6)—INSTRUCTIONSCONSTRUCTION AS WHOLE—SELF-DEFENSE. Instruction that if accused shot deceased not in his necessary or in his reasonably apparent defense he was guilty of murder was not erroneous, when considered with following instruction that he should be acquitted if the jury thought that he then believed, or had reasonable grounds to believe, that he was then in danger of death or great bodily harm at the hands of the deceased.

Appeal from Circuit Court, Carroll County. James Winburn was convicted Of murder, and he appeals. Affirmed.

Frank C. Greene, of Carrollton, and Scott & Hamilton, of Frankfort, for appellant. Chas. H. Morris, Atty. Gen., and Henry F. Turner, Asst. Atty. Gen., for the CommonWealth.

CLAY, C. This is an appeal by James Winburn, who was convicted of murder and given life Sentence.

The homicide occurred at the ball park in Carrollton. Besides appellant and the deceased, Albert Collins, Hugh Arvin, Thomas McDermott, and Roy Ellis were present. According to the evidence for the common

wealth, appellant and Collins were engaged in a game of CrapS, and appellant Won all the money that Collins had. Collins then borrowed a dollar from McDermott and the game was changed from craps to cards. In this game appellant lost not only What he had won, but all the other money that he had. Thereupon appellant told McDermott, who was sitting near, that he owed him $1.25, and demanded that McDermott pay him. McDermott claimed that he did not owe appellant any money, but had paid his board to appellant's wife. Appellant then slapped MCDermott over, and Collins remonstrated with him and told him that they did not want to have any trouble. Appellant drew his pistol and told Collins that he was as good a man as he Was and WOuld fill him full Of holes. He then shot and killed Collins. ACCOrding to the evidence for appellant, he had won SOme money that lay On the ground. When he went to draw in the money Collins stamped him on the hand and kicked him on the Chest. He then Saw his life WaS in danger and fired the gun. It further appeared that appellant was a cripple and had been operated. On Several times.

The first error assigned is the refusal of the court to grant appellant a change of Venue. His application Was based on the claim that it was necessary to remove him to an adjoining county to escape mob violence, and that the feeling against him in Carroll County Was Such that he could not obtain a fair trial there. His application Was Supported by his own affidavit, and the affidavits of tWO residents of Carroll county. It is insisted that appellant was entitled to a change of venue because his application and the Supporting affidavits were sufficient, and it does not appear that they were denied. The record, however, shows that the following order WaS entered:

“The motion of the defendant for a change of venue coming on for hearing and heard, and the court, being advised, overruled the said motion, to which ruling of the court defendant excepted.”

[1, 2] Since this order shows that a hearing was had on the motion, it will be presumed, in the absence of anything to the Contrary, that evidence was introduced and considered by the court. The evidence, however, does not appear in the record, and in the absence of the evidence we cannot review the propriety of the court's action in refusing the change of Venue.

[3] Another error relied on is the refusal Of the court to permit appellant to prove that his mother and other relatives Were insane. To authorize admission of evidence of insanity in the family of the accused there must be other independent testimony to ShoW that he was himself insane at the time of the homicide. Murphy v. Commonwealth, 92 Ky. 485, 18 S. W. 163, 13 Ky. Law Rep. 695; State V.

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