Cody v. Board of Commissioners of Elkhart County
| Decision Date | 06 December 1932 |
| Docket Number | 25,372 |
| Citation | 183 N.E. 404,204 Ind. 87 |
| Parties | Cody v. Board of Commissioners of Elkhart County |
| Court | Indiana Supreme Court |
1. APPEALS---Assignments of Error---Causes for New Trial---Cannot be Independently Assigned.---Errors which are proper causes for a new trial cannot be assigned as error by independent assignment. p. 89.
2. APPEALS---Assignment of Error---Failure to Show Exception---Waives Error.---An assignment of error based upon ruling on demurrer is waived when appellant's brief fails to show that an exception was taken. p. 89.
3. APPEALS---Briefs---Failure to Address Points to Motion for New Trial---Waives Error.---Where appellant fails to address any point in his brief to the motion for new trial or to any of the causes set forth therein, he waives the error in overruling his motion. p. 89.
4. TAXATION---Review of Valuation for Assessment---Of County Board of Review---Appeal to State Tax Board Exclusive Method.---The statute makes an appeal to the State Board of Tax Commissioners the exclusive method of reviewing the valuation for assessment made by a county board of review. (14149 and 14229 Burns 1926.) p. 91.
5. TAXATION---State Tax Board---Powers.---The State Tax Board has only such powers as are specifically delegated to it by law. p. 91.
6. TAXATION---State Tax Board---Power to Review Valuation of Board of Review.---The State Tax Board has power to review the valuation for assessment made by a county board of review when the appeal is taken in the manner and at the time provided by law. (14149, 14229 Burns 1926.) p. 91.
7. TAXATION---State Tax Board---Appeals Thereto---When Taken.---An appeal from the county board of review to the State Tax Board must be taken within the year the valuation was made, and, if not taken until later, the Board has no jurisdiction to act. p. 91.
8. TAXATION---State Tax Board---Appeals Thereto---Jurisdiction.---Action of the State Board of Tax Commissioners, in reducing the valuation of property three years after the valuation had been established and settled by the County Board of Review, was held unlawful for the reason that it had no jurisdiction. p. 91.
9. TAXATION---Action for Refund of Taxes---Under 14376 Burns 1926---When Lies.---An action for the purpose of retaining a refund of taxes paid will not lie unless and until there has been an application for rehearing or appeal as provided by 14376 Burns 1926. p. 92.
From Elkhart Circuit Court; Joseph Drake, Judge.
Action by Edward S. Cody against the Board of Commissioners of Elkhart County to recover a part of amount paid by plaintiff's assignor for the purchase of property involved in a delinquent tax sale. From a judgment for defendant, plaintiff appealed.
Affirmed.
Wallace W. Mehl and Jonas O. Hoover, for appellant.
Thomas A. Davis, for appellee.
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 number 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.
Appellant's 8th 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. Grand 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...
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