Board of Commissioners of County of Sullivan v. Riggs
| Decision Date | 02 October 1917 |
| Docket Number | 9,303 |
| Citation | 117 N.E. 214,68 Ind.App. 263 |
| Parties | BOARD OF COMMISSIONERS OF THE COUNTY OF SULLIVAN v. RIGGS |
| Court | Indiana Appellate Court |
Rehearing denied December 4, 1917.
Transfer denied June 28, 1918.
From Clay Circuit Court; John M. Rawley, Judge.
Action by James R. Riggs against the board of commissioners of the county of Sullivan, on a claim rejected by the board. From a judgment for plaintiff the defendant appeals.
Reversed.
Charles D. Hunt and Gilbert W. Gambill, for appellant.
Harris & Bedwell, William T. Douthitt, John W. Lindley and M. A Haddon, for appellee.
This case has heretofore received the consideration of this and the Supreme Court. Riggs v. Board, etc. (1914), 181 Ind. 172, 103 N.E. 1075. After the reversal the case was returned to the Sullivan Circuit Court, where appellee filed an amended complaint which is not materially different from the original complaint. To this amended complaint appellant filed an answer in general denial, also two affirmative answers, after which appellee filed a fourth paragraph of complaint, to which appellant filed an answer of three paragraphs, and afterwards a fourth and fifth paragraph of answer to the amended and the additional fourth paragraph of complaint.
Appellee's demurrer for want of facts to each and all of such affirmative answers was sustained, to which rulings appellant at the time excepted, and, refusing to plead further, judgment was rendered for appellee.
Appellant has appealed to this court and assigned as errors the action of the trial court in sustaining appellee's demurrers to each of the affirmative answers.
It is shown by the several paragraphs of complaint that in 1903 appellee was the owner of certain described lands in Sullivan county, Indiana, which in that year were given by the proper taxing officers a taxable valuation of $ 10,165. In February, 1904, he sold the coal, fire clay and minerals under the surface of such lands for $ 3,360. These latter properties were by the county auditor placed upon the tax duplicate in the name of such grantees, and were taxed at the same valuation as the consideration paid therefor, and such taxes for the years 1904, 1905 and 1906 were paid by such grantees. The auditor, however, failed to reduce the original assessment against appellee's lands, but required him to pay taxes on the original assessment of $ 10,165. After such sale the amount of taxes paid by the grantees of the coal and minerals was $ 129, and to that extent the taxes were wrongfully assessed against him, and it is this amount which he seeks to recover.
It is appellee's theory manifest from the leading averments of his several paragraphs of complaint that the county auditor should have deducted the taxable valuation of the coal and minerals sold by him in 1904 from the original taxable valuation placed upon his farm, and by reason of his failure so to do appellee was wrongfully required to pay taxes on such original valuation for the years 1904, 1905 and 1906, although the taxes levied on such coal and minerals were paid by the purchasers thereof, consequently he was entitled to recover that amount from the county.
The several answers in substance allege that the original taxable valuation placed upon appellee's lands at $ 10,165 was the fair and true cash value thereof exclusive of any coal or other minerals, and in making such original assessment the assessor did not take into consideration any coal or other minerals under the real estate, but the same were omitted by him when the land was originally assessed. Also the original assessed valuation of appellee's lands was similar to the assessment made against the surface of adjacent real estate in the vicinity of appellee's land of the same character, and the minerals which had been severed in adjacent lands were assessed separate to other parties than the owners of the surface, and the value of the surface of adjacent lands was valued at the same rate as appellee's land at which time there had been no severance of the coal and minerals from appellee's real estate.
It is first insisted that there was error in sustaining the demurrers to the several paragraphs of answers because no memoranda accompanied the demurrers. The record does not support this contention. This action was commenced prior to 1911, and the act upon which appellant relies, which requires a memorandum to be filed with the demurrer specifically excepts pending litigation. Acts 1911 p. 415, § 344 Burns 1914; Bissell Chilled Plow Works v. South Bend Mfg. Co. (1917), 64 Ind.App. 1, 111 N.E. 932. It is true some amendments to the original pleadings were made after the case was remanded to the Sullivan Circuit Court, and additional pleadings were...
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