James v. Hicks

This action was brought by Hicks, the defendant in error, on August 15, 1879, to recover $3,292.95 for taxes alleged to have been illegally exacted by the intestate as collector of internal revenue on October 31, 1865. The only question now made is that the suit was not brought within the time allowed by law. The plaintiff in his declaration alleged that he appealed to the commissioner of internal revenue to refund the tax illegally collected, and that his appeal was rejected by the commissioner on January 22, 1879. To this declaration the defendant pleaded that the appeal to the commissioner to refund the money exacted, was filed in his office on February 8, 1866, and was rejected on May 7, 1866. To this the plaintiff replied that the appeal referred to in the plea was not duly made, and that it was not rejected on its merits, but because it had not been made and certified on proper forms as required by the treasury regulations; and that afterwards, on January 8, 1868, he made an appeal in due form, which was entertained by the commissioner, and finally decided and rejected on January 22, 1879. The finding of the fact on this issue by the court is as follows:

'The issues in fact being tried and determined by the court in this cause, upon a stipulation in writing by the parties through their respective counsel, filed under section 649, Rev. St., the court find the facts as provided under the special plea of the statute of limitations, to be that the suit was brought within six months after the final rejection of the plaintiff's appeal made to the commissioner of internal revenue at Washington, the same having been pending before the commissioner from the time the appeal was perfected on form 46, according to the provisions of law, and the regulations of the secretary of the treasury made in pursuance thereof. It is further found that the delay in the consideration of the appeal by the commissioner, after its perfection on form 56 and the signatures of the proper officers required by law, was occasioned by the loss of the original papers filed with the department by the plaintiff or his attorney, and required by law to be kept there.'

Judgment was rendered in favor of the plaintiff below, to reverse which, is the object of the present proceeding.

''Sol. Gen. Phillips'', for plaintiff in error.

W. P. Burwell, for defendant in error.

MATTHEWS, J.