Culbertson v. Bd. of Com'rs of Fayette Cnty.

• Citation: 208 Ind. 22,194 N.E. 638
• Decision Date: 12 March 1935
• Docket Number: No. 26548.,26548.
• Parties: CULBERTSON v. BOARD OF COM'RS OF FAYETTE COUNTY.
• Court: Supreme Court of Indiana

208 Ind. 22
194 N.E. 638

CULBERTSON
v.
BOARD OF COM'RS OF FAYETTE COUNTY.

No. 26548.

Supreme Court of Indiana.

March 12, 1935.

Proceeding by Mary J. Culbertson, surviving and sole executrix of the last will and testament of John M. Culbertson deceased, against the Board of Commissioners of Fayette County, Indiana. Judgment for defendants, and plaintiff appeals.

Affirmed.

Superseding opinion of Appellate Court in 186 N. E. 267.

[208 Ind. 23]Appeal from Rush Circuit Court; John A. Tilsworth, Judge.

[194 N.E. 639]

Douglas Morris and J. R. Kiplinger, both of Rushville, for appellant.

Henry M. Dowling, of Indianapolis, for appellees.

ROLL, Judge.

Appellant filed her claim before the board of commissioners of Fayette county to recover certain taxes, which she alleged were wrongfully assessed and wrongfully collected. The claim was refused by the board and an appeal was taken to the circuit court. Upon a change of venue the cause was sent to the Rush circuit court. Appellee demurred to the complaint which was sustained. Appellant elected to stand on her complaint and refused to plead further. Judgment was rendered against her, and this appeal was perfected, assigning as the only error the sustaining of the demurrer to the complaint.

The complaint, or claim for a refund of taxes, was in two paragraphs. The first paragraph fully states the facts, and the second contains no facts that are not alleged in the first. If the first paragraph is sufficient, the second is also sufficient, and if the first in insufficient, the second is likewise insufficient. So what we say with reference to the first paragraph is also applicable to the second.

[208 Ind. 24]The first paragraph of complaint alleges in substance the following facts: That John M. Culbertson died testate on April 18, 1924, and Mary J. Culbertson was appointed special administratrix of his estate on May 12, 1924, to serve pending a suit to contest the will of the said John M. Culbertson. The will of said decedent was probated on April 2, 1925, and Mary J. Culbertson and Alice C. Culbertson were appointed executrices of said estate under the provisions of the will; that on February 20, 1888, said decedent became the owner of 100 shares of the original 7 per cent. guaranteed stock (par value $100) in what was known as the Pittsburg, Fort Wayne & Chicago Railway Company, and continued to own said stock until March 11, 1919, when the same was exchanged for 100 shares of the preferred stock of said company, in accord with the plan of said company. That he continued to own said stock until the date of his death. That said railway company was at all times an Indiana corporation. That from March 1, 1889, until March 14, 1905, decedent owned 45 shares of the common stock (par value $50) of the Little Miami Railroad Company, an Ohio corporation, and from March 11, 1905, until his death, he was the owner of 124 shares of stock (par value $50) in said corporation. Said stock was never listed for taxation by decedent in his lifetime. On September 24, 1924, the auditor of Fayette county placed all of said stock on the tax duplicate as omitted property, and charged the same in the name of decedent. The total amount of the tax on account of listing the above stock as omitted property amounted to $10,001.05, which the special administratrix paid (under protest) to the treasurer of Fayette county on November 3, 1924, as and for the taxes on said alleged omitted property for the years 1888 to 1923, both inclusive; that at said time said special administratrix was informed and in good faith believed [208 Ind. 25]each of said railroads during all of said time were foreign corporations organized under the laws of states other than Indiana, and that said stock was legally and rightfully assessed for taxation during each of said years of ownership by said decedent, but in truth and in fact said Pittsburg, Fort Wayne & Chicago Railway Company was, during all of said years, a domestic corporation duly organized under the laws of the state of Indiana, and in truth and in fact said stock in said company was never lawfully subject to taxation against decedent as owner thereof; that in truth and in fact for each of said years from 1888 to 1923, both inclusive, all lawful taxes on said shares of stock in said company were duly paid by said Pittsburg, Fort Wayne & Chicago Railway Company; that not until long after said special administratrix paid said taxes assessed as foresaid on said shares of stock in the said Pittsburg, Fort Wayne & Chicago Railway Company did she ascertain the fact that said railway company was an Indiana corporation, and that it has paid the taxes on the stock so owned by decedent, and that the payment by her of said taxes to the treasurer of Fayette county was made in complete ignorance of said facts. That of the total sum of $10,001.05 paid as above set out, the sum of $6,253.17 was wrongfully assessed as aforesaid and ignorantly paid by said special administratrix as and for taxes on stock in the said Pittsburg, Fort Wayne & Chicago Railway Company for the years 1888 to 1923, both inclusive; that for the reasons hereinbefore set out appellant

[194 N.E. 640]

seeks by this action to recover said $6,253.17, together with interest at the rate of 6 per cent.

Appellee demurred to appellant's complaint for insufficient facts. The third, fifth, and sixth paragraphs of its memorandum attached to said demurrer are as follows:

‘3. Each paragraph of said petition is insufficient[208 Ind. 26]in its statement of facts in that it fails to allege facts showing that any of the taxes alleged to have been paid by the estate of said John M. Culbertson, were wrongfully assessed against said estate or wrongfully paid on its behalf.’

‘5. Each paragraph of said petition is insufficient in its statement of facts, in that it shows that the taxes sought to be refunded were extended on assessments made as the judgment of a taxing officer authorized to make same, and each of said paragraphs fail to show that any complaint was registered at the time said assessments were made, either by application for rehearing or by an appeal with respect to said assessments.’

‘6. Each paragraph of said petition is insufficient in...