¶1Opinion of the court by
¶2— Reversing.
¶3It appears from the petition in this case that F. Stanley 'Watson, auditor’s agent, filed in the clerk’s office of the Mason county court a statement authorized by Kentucky Statutes, section 4241, the object of which was to have certain property belonging to the Chesapeake & Ohio Railway (Company assessed for taxation. It further appears that 'the county court of Mason county refused to take jurisdiction of the complaint, and refused to determine whether, or not said property was liable to assessment or subject to taxation. The object of this action is to obtain a writ of mandamus against the county judge of Mason county requiring him to entertain jurisdiction of said case, and to decide the same on its -merits, to proceed upon the facts pieced before him by the relator, to ascer*423tain as near as practicable, and to cause to be forwarded to the auditor, the compulsory reports of these corporations thus obtained, and to proceed as required by law. To this petition a demurrer was filed on behalf of the defendant on the ground that the petition did not state facts sufficient to constitute or support a cause of action, which demurrer was sustained by the court, with leave to plaintiffs to amend, and, they declining to amend, the petition was dismissed, from which judgment this appeal is prosecuted.
¶4The only question which we deem it necessary to consider is whether or not appellants were entitled to the peremptory mandamus, and we shall not undertake to decide whether the property sought to be subjected to taxation was in law liable to assessment or taxation. It will be seen from this record that the appellee county judge refused to try or consider the question as to the liability of the railway, or whether the property in question had been omitted by any of the authorities authorized to assess the same. In short, the county judge declined to try and pass upon the legality of plaintiff’s claim, and1 it appears also that from the petition, and as a matter of law, we hold that no appeal could be prosecuted from the order of the county judge aforesaid. It is contended for appellee that the writ of mandamus could not be legally issued. If this be true, and if also it be true that there is no appeal from the order refusing to entertain jurisdiction, then the appellant is without any remedy. It will be seen from an examination of section 4241, Kentucky Statutes, that it is made the duty of the sheriff or auditor’s agent to cause to be listed for taxation all property omitted, or any portion of property omitted, by the assessor, board of supervisors, board of valuation and as*424sessment, or railroad commission, for any year or years. The section further provides for the filing of a statement containing a description etc., of the property, and the value of corporate franchise, if any, together with the names and places of residences of the parties owning such property. It is further provided that at the next regular term of the county court after notice has been served five days,, if it shall appear to the court that the property is liable for taxation, and has not been assessed, the court shall enter an order fixing the value thereof at its fair cash value,, estimated as required by law, if not liable, he shall make an order to that effect. It is further provided as follows: “From so much of the order of the court deciding whether or not the property is liable to assessment, either party may appeal, as in other civil cases, except that no appeal bond shall be required where the court decides that the property is not liable to assessment or taxation.” Various ¡other provisions are embraced in the section not necessary to refer to. It seems clear to us that there can be no appeal from any order of the county court in respect to the matter in controversy, except as provided by the section supra; and, inasmuch as the court refused to adjudge whether or not the property was liable to assessment or taxation, and that being the only judgment or order from which an appeal is allowed, it seems clear that no appeal could be prosecuted from an order dismissing the proceeding without rendering a judgment as .provided by law.
¶5If the facts stated by plaintiff are true, the property in question was omitted; but as before stated, we shall not undertake to decide whether the property ought to have been assessed in Mason county, or whether it had been omitted. That question must be primarily decided by the county court of Mason county. It seems to us that the *425duty and power of the circuit court to issue a mandamus in a case like the present one is not an open question. This court, in Hoke v. Com., 79 Ky., 567, 3 R., 407, discusssed at great length the duty of the county court to make an assessment of omitted property upon the institution of proceedings in the county court by the auditor’s' agent; and also expressly held that, where the county court failed to hear and determine as to the liability of the property to assessment, a mandamus should be awarded against him — not to control his judgment as to the liability of the property to assessment, but merely to compel him to hear and determine that question. The common pleas court of Jefferson county had awarded a mandamus to compel the county judge to hear, consider and determine the question, and this court, in a very exhaustive opinion, affirmed the judgment of the common pleas court. .
¶6We deem it unnecessary to discuss the various author' :ities relied on by the parties. We are of opinion that it was the duty of the county judge to hear the case presented by the auditor’s agent, and render a judgment holding the property liable to be assessed, or holding that it was not liable; in which event either party could have appealed to the circuit court. The dismissal by the county judge for lack of jurisdiction was in no sense a judgment determining Whether the property was- liable to assessment or not.
¶7For the reasons indicated, the judgment appealed from is reversed, and cause remanded, with directions to the circuit court to overrule the demurrer, and for proceedings consistent herewith.
¶8Petition for rehearing by appellee overruled.