Cody v. Bd. of Com'rs of Elkhart Cnty.

• Decision Date: 06 December 1932
• Docket Number: No. 25372.,25372.
• Citation: 183 N.E. 404,204 Ind. 87
• Parties: CODY v. BOARD OF COM'RS OF ELKHART COUNTY.
• Court: Indiana Supreme Court

204 Ind. 87

183 N.E. 404

CODY

v.BOARD OF COM'RS OF ELKHART COUNTY.

No. 25372.

Supreme Court of Indiana.

Dec. 6, 1932.

Appeal from Elkhart Circuit Court; Jos. Drake, Judge.

Action by Edward S. Cody against the Board of Commissioners of Elkhart County. Judgment for defendant, and plaintiff appeals.

Affirmed.

Jonas Hoover, of Chicago, Ill., and Wallace W. Mehl, of Goshen, for appellant.

Thomas Davis, of Goshen, for appellee.

TRAVIS, J.

This is a suit by appellant against appellee to recover a part of the amount paid by his assignor for the purchase of the property involved at a delinquent tax sale. The suit was presented by two paragraphs of complaint, which was tried to the court on the second paragraph. Appellee's demurrer was sustained to the first paragraph of the complaint and overruled to the second paragraph. Upon request, the court found the facts specially and made its conclusions of law thereon. The conclusions of law upon special findings of fact were in favor of the defendant. Judgment was entered upon the conclusions of law.

Appellant's motion for a new trial was overruled. Appellant assigns eleven errors -the first, that the trial court erred in sustaining appellee's demurrer to the first paragraph of appellant's amended complaint; (7) the trial court erred in each of the first and second conclusions of law; (8) the trial court erred in overruling the appellant's motion for a new trial. The other alleged errors are based upon the admission of alleged improper evidence and the refusing to admit alleged proper evidence, and that the court erred in each of its findings of facts for the reason that they were not sustained by proper or sufficient evidence, and upon the rendering of judgment, and in refusing to find the issues in favor of appellant, and in refusing to enter a judgment in favor of appellant. Some of the assigned errors, other than those numbered 1, 7, and 8, might be proper as causes for a motion for a new trial if correctly stated, but such alleged errors may not be assigned as error by an independent assignment. Assigned error No. 1, based upon the court's sustaining appellee's demurrer to the first paragraph of appellant's complaint, is waived because appellant does not show in his brief that he excepted to the ruling of the court. It is necessary to point to the record to show that an exception was saved, to present the assigned error for review. Princeton Coal Co. v. Dorth (1922) 191 Ind. 615, 620, 133 N. E. 386, 500, 134 N. E. 275, 24 A. L. R. 1471. Appellant's eighth assignment of error, that the court erred in overruling appellant's motion for a new trial, is waived, for the reason that appellant makes no point in his brief which is addressed to the motion for a new trial or to any one of the causes set forth in his motion for a new trial. Rule 22, cl. 5, of the Supreme Court; Buffkin v. State (1914) 182 Ind. 204, 106 N. E. 362;Pattison v. Grant Trust & Savings Co. (1924) 195 Ind. 313, 144 N. E. 26.

Appellant, in his brief, under the head of “Points And Authorities,” states sixteen numbered points, not one of which is addressed specifically and directly to the remaining assigned error, that the court erred in each of the first and second conclusions of law. In order to pass upon this case upon the merits, we consider those points, which are not abstract propositions of law, as directed to the conclusions of law. The first conclusion of law is “That the State Board of Tax Commissioners of Indiana had no authority in law to reduce said assessment of personal property of Crow-Elkhart Motor Company.” Finding No. 1 of the trial court is that between the 1st day of March, 1920, and the 1st day of May, 1920, the Crow-Elkhart Motor Company made and delivered to the county treasurer a statement in duplicate of its capital stock, showing, among other things, the value of tangible property owned by it on March 1, 1920. Finding No. 2 shows that the “Board of Review entered its assessment on the property of said corporation at” an amount larger than the valuation made by the corporation in its return. Finding No. 3 is that thereafter the auditor of Elkhart county entered the assessment against the corporation on the tax...