Florer v. Sherwood

• Decision Date: 13 June 1891
• Docket Number: 15983
• Citation: Florer v. Sherwood, 128 Ind. 495, 28 N.E. 71 (Ind. 1891)
• Parties: Florer, Treasurer, v. Sherwood, Administrator
• Court: Indiana Supreme Court

28 N.E. 71

128 Ind. 495

Florer, Treasurer, v. Sherwood, Administrator

No. 15983

Supreme Court of Indiana

June 13, 1891

From the Tippecanoe Circuit Court.

Judgment affirmed, with costs.

R. P Davidson, J. C. Davidson and C. E. Lake, for appellant.

J. B Sherwood and J. H. Adams, for appellee.

OPINION

McBride, J.

This was a suit by the appellee, as administrator de bonis non with the will annexed of the estate of Solomon Romig, deceased, against the appellant as treasurer of Tippecanoe county, to enjoin the collection of certain taxes assessed against the estate represented by him.

The complaint alleged, in substance, that in each of the years from 1881 to 1889, inclusive, he, as such administrator, and his predecessor, one Earhart, as the executor of said estate had, as required by law, duly listed for taxation all of the taxable property belonging to said estate, and had each year paid all taxes assessed thereon, but that, under the claim that a portion of the personal property belonging to the estate had been omitted and not listed for taxation, the auditor of the county had assumed the right to, and had, placed a large additional amount of personal property upon the tax duplicate, upon which he had assessed taxes which he had extended upon the tax duplicate, and had added penalties thereto, the additional taxes and penalties amounting in the aggregate to $ 559.69.

It was further averred that there had been in fact no omission of any property, but that the assessor, having placed a valuation upon all of the property belonging to the estate, the auditor placed a higher valuation thereon, and that the assessment by the auditor was only upon a higher valuation of the same property already assessed, and upon which the taxes had been paid.

It is conceded that the complaint is good.

The appellant filed an answer in two paragraphs, each of which the circuit court held bad on demurrer.

The sufficiency of these answers presents the principal question in the case.

The first paragraph of answer gives what is alleged to be the actual value of the taxable personal property belonging to said estate in each of the years in question, and alleges the omission by the executor and administrator in each year to list a portion thereof, giving the aggregate value of such omitted property in each year.

It is alleged that the listing of such property in each of said years was partial only, that the omissions each year were purposely made, with the intent of withholding the omitted property from taxation, that neither the executor nor administrator gave any information to the assessor of the existence of any of the omitted property, and that the assessor, relying upon the lists furnished, and believing them full and accurate, acted accordingly.

It is then averred that "Said property so listed for taxation, and said property not so listed as above charged, consisted of moneys on hand or on deposit within or without the State of Indiana, subject to the order, check or draft of said Earhart for the years 1881 and 1882, and for the remaining years above charged, subject to the order, check or draft of said Sherman as such trustees; also, of moneys belonging to said estate loaned out, either on time or on call, and credits due said estate, but defendant is unable to give a more particular description of the said property, or of any part thereof, nor can he better describe the part so listed for taxation, or the part not so listed; but that at each of said times said property was so listed, the person listing the same well knew that such property was of the total value above charged on the first day of April in each of said years."

It is well settled that the auditor has no power to increase the valuation of property properly listed for taxation, over the valuation placed on it by the township assessor or by the board of equalization.Williams v. Segur,106 Ind. 368, 1 N.E. 707;Board, etc., v. Senn,117 Ind. 410, 20 N.E. 276.

He has power, however, to assess property which has been omitted from the assessment lists and has not been assessed.Section 6416, R. S. 1881(Acts 1889...