Donch v. The Board of Commissioners of Lake County

• Decision Date: 16 February 1892
• Docket Number: 547
• Citation: 30 N.E. 204,4 Ind.App. 374
• Parties: DONCH v. THE BOARD OF COMMISSIONERS OF LAKE COUNTY
• Court: Indiana Appellate Court

30 N.E. 204

4 Ind.App. 374

DONCH v. THE BOARD OF COMMISSIONERS OF LAKE COUNTY

No. 547

Court of Appeals of Indiana

February 16, 1892

Petition for a rehearing overruled May 14, 1892.

From the Porter Circuit Court.

Judgment reversed, and cause remanded.

J Kopelke and H. A. Gillett, for appellant.

J. W Youche, for appellee.

OPINION

BLACK, J.

The appellant presented to the appellee a claim for the refunding of taxes. The claim was filed in the office of the county auditor December 2d, 1890. It was disallowed, and the claimant appealed to the Lake Circuit Court. The venue was changed to the court below. A special finding was rendered, and we are required to determine whether or not the court below erred in the conclusion of law stated. The court stated the facts as follows:

"The plaintiff, John Donch, was, during all the years 1882 to 1890, both inclusive, a resident citizen of the town of Crown Point, in Center township, Lake county, Indiana. During all of said years he was the owner of money which he had loaned out to various parties and for which he held mortgages. During the said years he made returns of his property as hereinafter set forth to the assessor of said town and township at the times required by law. On each of said several years, at the time of making such returns, the assessor asked Dond Donch how much money he had loaned out, and in that connection read over to him the second item in the assessment schedule, to wit: 'All moneys loaned by me, either on time or on call,' and was answered by said Donch, on said several occasions, as follows:

"In the year 1882, $ 2,000.

"In the year 1883, $ 2,000.

"In the year 1884, $ 2,000.

"In the year 1885, $ 3,000.

"In the year 1886, $ 3,000.

"In the year 1887, $ 3,000.

"In the year 1888, $ 3,000.

"In the year 1889, $ 6,000.

"And thereupon, without asking for the items or inspection thereof, on said several occasions, the assessor set down in the appropriate column opposite said item 2, and adopted said amounts so reported, as the valuation of said property for said several years; and the said amounts so reported were placed upon the tax duplicate of said Lake county for the town of Crown Point for said several years and taxes computed thereon, and the same were regularly paid by said John Donch, from year to year, to the treasurer of said Lake county, as they became due. In fact, said Donch had, at said times, on the 1st day of April of said several years, mortgages representing moneys loaned by him of the face value as follows: 1882, $ 5,595; 1883, $ 8,695; 1884, $ 7,560; 1885, $ 7,860; 1886, $ 9,050; 1887, $ 9,960; 1888, $ 12,810; 1889, $ 14,260. On the 8th of May, 1890, the auditor of said Lake county, having been informed that said John Donch had, during said several years, held and owned the said moneys loaned, after giving said Donch proper notice to appear at his office and show cause why he should not be assessed with additional taxes upon the same, as upon omitted property, and after said Donch had appeared to said notice, and the said matter had been heard by such auditor, placed valuations upon the said property of said John Donch, to wit, upon the amounts of difference between the amounts returned by said Donch to the assessor, as aforesaid, and the amounts shown to have been held by him as aforesaid, the auditor claiming that the assessments so made were as upon omitted property. Said auditor then placed said valuations upon the tax duplicate of said Lake county for the town of Crown Point for the year 1889, against said John Donch, and levied and charged him with taxes thereon as follows: For 1882, $ 25.42; 1883, $ 99.14; 1884, $ 75.64; 1885, $ 69.72; 1886, $ 87.39; 1887, $ 101.57; 1888, 145.37; 1889, $ 113.42; which assessments so charged and levied were the taxes for said several years, according to the rates levied upon property in said town of Crown Point, for State, county, town and township purposes. Said auditor delivered such duplicate to the treasurer of said county to collect the said sums charged thereon; and said John Donch did, thereupon, on the 21st day of May, 1890, pay to said treasurer the sum of $ 717.67, on account and in satisfaction of said taxes so charged and levied against him by said auditor, as aforesaid. And the court further finds that, on the 1st day of December, 1890, all of said sum of money so paid by said John Donch to the treasurer of Lake county, as aforesaid, was yet in the treasury of said county and no part had been paid to the State or any town or township in said county."

Upon the facts so found the court stated as a conclusion of law, "That the plaintiff is not entitled to recover the said sum of $ 717.67, or any part thereof, paid by him as aforesaid."

The county auditor, in making the addition to the appellant's taxes, as stated in the finding, was assuming to proceed under and pursuant to the statute, section 6416, R. S. 1881, as amended by the act of March 9th, 1889, Elliott's Supp., section 2129 (Acts of 1889, p. 341), providing that "Whenever any county auditor shall discover or receive credible information, or if he shall have reason to believe that any real or personal property has, from any cause, been omitted, in whole or in part, in the assessment of any year or number of years, from the assessment book or from the tax duplicate, he shall proceed to correct the tax duplicate, and add such property thereto, with the proper valuation, and charge such property and the owner thereof with the proper amount of taxes thereon, to enable him to do which he is invested with all the powers of assessors under this act," etc.

This section, as amended in 1889 is, in substance and effect, re-enacted as section 142 of the tax law of 1891. Acts of 1891, p. 257.

The county auditor's power under this statute to assess property is limited to specific property, susceptible of identification, which has been omitted in the assessment of any year or years from the assessment book or tax duplicate. When the addition here in question was made, the auditor had no authority to increase the valuation of property listed by the owner for taxation over the valuation made by the assessor. Williams v. Segur, 106 Ind. 368, 1 N.E. 707; Board, etc., v. Senn, 117 Ind. 410, 20 N.E. 276; Florer v. Sherwood, 128 Ind. 495, 28 N.E. 71; Woll v. Thomas, 1 Ind.App. 232, 27 N.E. 578.

That the action of the auditor in the case before us was not authorized by this statute, but involved a re-valuation by him of property which in the former years mentioned had been assessed by the assessor, is indicated in the finding with sufficient certainty and clearness. Upon this proposition there does not seem to be need of argument. The valuations placed upon the property by the auditor, and entered by him upon the duplicate, consisted of differences between the face values and the assessor's valuations of mortgages held by the appellant for moneys loaned by him. "All moneys loaned" must consist of a chose or choses in action. A single chose in action, in favor of a single person, can not be regarded as being more than one article of property though it consist of a right to recover a number of units of the standard of value loaned by such person. If it be a note or a mortgage for a certain number of dollars, it has a value as a chose in action which may, or may not, be its par value, whether it be for money loaned or for some other consideration....