JAN. TERM, 1857. RANDLE V. WILLIAMS. *RANDLE P380 V. WILLIAMS, AD. A writ of certiorari will be quashed by the c ma, on the motion of a party, or of its own motion, at any stage of the proceeding, if the court becomes satisfied that it ought not to have issued. If the assessment and levy of taxes upon the prop-
RANDLE V. WILLIAMS. VOL. 18 erty of an individual be excessive, the appro-lent, as sheriff and collector of that priate remedy is by appeal to the county court to county, had charged more fees or com-have the asmssment corrected. The circuit court has no jurisdiction, by writ of missions than he was entitled to by certiorari, to correct. the _assessment and taxation law, and also had paid the printer, for of property by the sheriff and collector, nor to re-advertising the said lands and lots for vise his commissions and charges in the collection sale for taxes, more than he could of the revenue. rightfully or lawfully *charge ; [*382 Appeal from the Circuit Court of Clark that appellant was about to sell the County. said lauds and town lots for the taxes, penalty and costs, so illegally charged TT N. SHELTON WATSON, Cir-thereon, and the petition, among-cuit Judge. ether things, prayed that a certiorari Flanagin, for the appellant. be issued to bring up the record and Jordan, for the appellee. proceedings of the county court relative to the assessment of the taxes on the 0441*) *HANLY, It is some*hat said lands and. awn lots Mentioned, difficult to ascertain the precise char-tor the year 1853, and that the same acter of the proceedings before us ;• might be quashed, and the sale thereof cause it seems tO have commenced at ,superseded: law; and ended in a decree in chancery ; The petition, showed that no part of thus uniting- chancery and law Pro-the- tar; or costa, had been paid, but ceediugs in the same controversy, or stated: that, ,after -the advertliement :suit, and producing thereby an abun-for sale; "aterider.was made to- thetip-dant harvest of error, and inextricable pellant,,, - as ealleetor, of the-;:trinount of confusion. As a chancery proceeding tax; fees and eOSts, that petitioner eon-it would be wholly unwarranted and sidefed -to be JuStly due but that the unauthorized. We shall, therefore, re-appellant, as- eollector, refused to -re-, gard it as havhig beert intended to in-Oeivejnaatisfaction a4esasum than the voke a remedy; at fats:t . ,,..through the In7 -itkhi? . leAtnount le. had efistiked, strumentality or iigtiey.;_of the CPI:a—. inis: : mekte, and the mon Iaw writA .0 -4,et491:ariv *sittig writiiisued in . vacation: - The record from the cireuit to the:Oeunly court iif" -was-returned on eerii;Orio,ri; and the sale Clark county,.an stick' iippears te have,: orderec to be _superseded ., , When the been the design Of the- apPellee iueek: ease was . flnally,:disposed of in: the ch.; ting the proceeding on foot. The fact IS; 'cult "Ordered,.adjudged • the counsel for the appellee seems to _and decreed'? bY the. court, that the combat the : idea with apparent Supersedeas be Set Seide as-to $44.88, and Warmth, that it ever was intended, Cr Perpetuated as to . $313.68, and that the ean be considered t -as a chancery phi-- appellant pay the costs expanded: and oeeding in any sense whatever. from which be appealed to this court. The petition, in sUbstanee, complains - It it weir settled,. that if the- court that appellant' is sherift and collect:Cr beco:Inea satisfied, at. any stage of the of Clark county ; that there As an ex-,cautle, , that thewrit of certiorari ought-cess in the assessment and taxation.of -net to have issued or been granted, it certain tracts of lands, and- fifty-six May . be -quashed, on the motion of the town tots, situate in- Clark county, for' party,-or by theH eaurt of its own mo-the year 1853, and belonging to the es-tion ; becanse, otherwise, a court:might tate of Samuel Moore, dedeased, of be-forted to prcieeed, if neither party which appellee is the administrator. should see fit to Make a motion of the And it also complains that the appel-kind, although- it might discover that a
JAN. TERM, 1857. RANDLE V. WILLIAMS. wrong was about to be committed. manner and mode in which such ap-See Rex. v. Wakefield, 1 Burr. 485. peals shall be taken to, and conducted 2he People v. The Asupervisors of Alle-by, the county court, are also pre-ghany, 15 Wend. R. 198. 2he People v. scribed by the act. See Pamph. Acts The Supervisors of Queens, 1 Rill's R. of 1853, p. 55. sees. 3 and 4. 206. Hence, if it be true, as alleged in the It resembles a case, where a court petition, that the assessment and levy will, of its own motion, dismiss a proof taxes on the property therein men-ceeding at any stage of the cause when tioned was excessive, no proposition a want of jurisdiction is discovered. can be clearer than that the appro-See Tunstall v. Worthington, Humph. priate remedy was by appeal, to the C. C. R. 662; Ihe State v. Eingland,3 county court, under the statute, to Zabr. (N. J.) Rep. 85. have the amount erroneously assessed 383*] *And this will result from the and levied corrected and adjusted in fact, that, at common law, the writ of that respect. And it does not appear, certiorari is not a writ of right, but nor is it preterded, that the appellee will be granted or denied in the discre-was deprived of the right of appeal tion of the court, according to the cir-without fault or negligence on his part. cumstances of each particular case. Its See Roberts v. Williams. 15 Ark. issuing iu cases where it properly may 48. issue, is discretionary with the court, If the sheriff and collector charged and it, therefore, becomes a duty to more fees and commissions than the quash it, whenever it plainly appears law allowed, he was liable to the in-that such discretion has been im-jured party *in a civil suit,in case Cr384 properly exercised. It was said in the they were paid,for the amount illegally case in 1 Hill 200, above cited, that the charged, and five dollars for each time court will retrace its steps, by quash.: illegally demanded, and was also sub-ing the writ, notwithstanding a return ject to a criminal proceeding in the has been made, and the merits of the form of an indictment for extortion. case gone into. And in 1 Burr. 485, See Digest, 527.2 the writ of certiorari was superseded, We are„ therefore, of the opinion the return ordered to be taken from that the writ of certiorari was improvi-the files, and the order of the justices, dently issued in this case, and that which had been removed by certiorari, the motion of the appellant to quash was remanded to the justices 'again." the same, and set aside the suliersedeas 2. By the act of 1853, the assessors ought to have been sustained. throughout the State are required to The judgment of the Clark circuit file the assessment lists in the office of court rendered in this cause, is, there-the county clerk on, or before the 15th fore, reversed, and the same remanded April, and give notice of the tact in to said court with directions I hat the each township in the county.' . And certiorari granted herein be quashed, the same act provides, that , any person and supersedas awarded thereon be aggrieved by such assessment, so reset aside. quired to be filed, may appeal , to the Cited:-27-682; 28-90; 46-387; 49-533. county court, at the next term thereof 2. On certiorari not lying, this case is gee itioned after the assessment is so filed, and in Floyd v. Gilbreath, 27-675. See also Prairie Co. have the assessment corrected, if it v. Matthews, 46-333. should be found to be incorrect. -The I. On certiorar,i see Levy V. Lyschinski, 5416, note I.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.