Case 102 — Action to Recoves Taxes

June 19.

#### Board of Councilmen of City of Frankfort *v.*Deposit Bank of Frankfort.

APPEAL PROM FRANKLIN CIRCUIT COURT.

Judgment pou Defendant and Plaintiff Appeals.

Reversed.

Appeal — Agreement that Case shall Await the Decision op Other Cases — Recital op Agreement Nullified by Exception.

Held: Upon appeal from a judgment reciting that the parties agreed to let the case await the decision of certain other cases pending on appeal, an exception to the judgment must be regarded as nullifying that recital, and, in the absence of a plea setting up *767the agreement recited, the appellant is not bound by the decision in the cases referred to, which was afterward overruled.

W. H.. JULIAN, IRA JULIAN and J. H. CROCKETT foe, APPELLANT.

FRANK CH-INN foe appellee.

(No brief in the record.)

Opinion of the corar by

CHIEF JUSTICE HAZELRIG-G

Reversing.

This action was brought in August, 1804, by the city of Frankfort against the Deposit Bank for taxes alleged to be dhe the plaintiff for the years 1892, 1893, and 1894. A demurrer was sustained to the petition so far as it 'sought to enforce a collection of the taxes of 1892, and for penalties and interest, and, the plaintiff declining to plead further in respect to these items, the petition to such extent was dismissed. This was in September, 1894, and there has been no appeal from that judgment.

The bank then filed its answer as to the years 1893 and 1894, relying solely on its alleged contract with the State under the Hewitt law. This answer was filed in September, 1894, and nothing further appears to have been done in the case until on February 1, 1896, when a judgment! was rendered upholding the defense set up in the answer, on the authority of the construction given the Hewitt law by this court in the Bank Tax Case of June, 1895, (31 S. W., 1013). The city excepted to this judgment, and prayed an appeal to this court. It did not pr'osecute this appeal, but sued out an appeal from this court on the 14th of January, 1898, and now asks a reversal of the judgment of February 1, 1896, on the authority of the Bank Tax Cases of March 24, 1897 (39 S. W., 1030). It is due the trial court to note that the judgment complained of was rendered in pursu-*768anee of the 'majority opinion of this court of June, 1895, sustaining the contract claimed by the bank under the Hewitt law. This court in 1897 overruled the opinion of 1895, and it would seem to follow necessarily that the judgment in this case should be reversed.

This would probably be conceded, except that it is recited in the judgment complained of, in substance, that the parties by their attorneys agreed to let the case await the decision of the court of appeals in certain cases the same bank and the county of Franklin had pending in this court, and which involved the same defense; it being recited that the liability of the bank in the city case should abide the result of those two cases. But this recitation, it seems to us, is not conclusive of such an agreement, where there is an exception to the judgment. The exception must be taken to apply to every recitation in the judgment when it is called in question directly upon appeal. If the judgments were attacked collaterally, it might be that such recitations would be taken as true. A complaining party can do no more than except to a judgment, and that he may do even if the court recites that he consents thereto. While an exception is not necessary to secure the benefit of an appeal, still the office of an exception in a case like this serves to nullify the effect of the recitation, that the complainant consented.

In the absence of a plea setting up an agreement, we can not restrict the effect of the exception reserved1 by the complainant to certain parts only of the judgment. Under the authority of the tax decision of 1897, the answer of the bank is not good, and the judgment denying the city the right to collect the tax on the grounds set up in the answer is erroneous. It is noticeable that the petition of *769the city was not dismissed, still in that the judgment appealed was, in substance, a final order. Reversed for further proceedings not inconsistent with this opinion.