Opinion of ti-ie court by
JUDGE O’REARAffirming.
L. E. Sinclair, auditor’s agent under Auditor Stone, began proceedings against appellant to require him to list for taxation certain omitted properties for certain designated years. The statement was filed in the county court as required by statute. Por some reason not explained in *739the record, the summons was not issued upon this statement within the five days directed by the statute. It is now contended for appellant that, as this was not done, although summons was in fact issued upon the statement, and executed upon the recusant taxpayer, the action of the county court in listing the omitted property for taxation was void. We are of the opinion that the provision of the statute requiring the clerk of the county court to issue a summons against the taxpayer within five days after the filing of the statement is directory only to the clerk. It can not, and ought not to, affect the right of the Commonwealth to proceed against the omitted property because some subordinate officer has failed to promptly discharge his duty. The right of the taxpayer is merely to have a summons, issued upon the statement, served upon him more than five days before the term at which the court may proceed to try and determine the case. Section 4241, Kentucky Statutes, 1899.
It is also contended for appellant that when Auditor Stone’s term of office expired the terms of all the auditor’s agents of the State terminated with it; that therefore Sinclair had no right to prosecute the claim. For aught this record shows, Sinclair had not been removed as auditor’s agent at the time of the proceedings in this case. Section 4258, Kentucky Statutes, 1899, allows the Auditor of Public Accounts to appoint an agent in each county of the Commonwealth, who shall hold his office and be removed at the pleasure of the auditor. It is made his duty, by section 4260 of the statutes, to cause to be listed for taxation, in the manner required by law, all property In the county for which he may be appointed, and which may have been omitted to be assessed by the assessor or other tax officials. This court held in the case of Smith v. Coulter, Auditor, 113 Ky., 74, *74023 R., 2381, 67 S. W., 1, that a clerk appointed by the auditor, and whose term of office was the same as that of the auditor, and who by statute continued to hold his office until removed by the auditor, continued 'to hold after the expiration of ithe term of the auditor who appointed him, and held until removed by an order or action to that effect. The same principle applies to the question in hand.
But we do not deem it material to the rights of the parties to this litigation whether Sinclair continued to hold office as auditor’s agent till the final trial of this case. The auditor’s agent is noí a party to this proceeding, nor is his presence essential. The action is one in the name of the Commonwealth, instituted by, or upon information furnished by or upon motion of, the auditor’s agent or the sheriff of the county. If he had died after the action had been begun, it would not have been necessary to have revived it. His successor in office, or the sheriff, would merely have been authorized to have controlled the proceedings so far as the statute permitted such control'; nor could the resignation of the auditor’s agent have terminated the action. The proceeding is for the State, and on its behalf, and on behalf of the county, to require the listing of property which the taxpayer and taxing- officers have omitted.
Appellant suffered judgment by default in the county court. Upon appeal to the circuit court, he did not file an answer controverting the allegations of the statement filed by the auditor’s agent, nor did he make or offer any defense to the merits of the case. Up to this time the allegation that he had omitted to list his property for taxation for the years mentioned stands confessed. The circuit court dismissed the appeal, which left the judgment of the county court taxing the property in effect. We think it would have been more regular, upon the state of the rec- *741• ord, for the circuit court to have affirmed the county court’s judgment; but the form of the order is not material, as the result is the same in either case.
No showing having been made against the right of the State to have the omitted property assessed, the judgment is affirmed.
Petition for rehearing by appellant overruled.