Gross Income Tax Div. v. W.B. Conkey Co., 28547.

• Citation: 228 Ind. 343,88 N.E.2d 563
• Decision Date: 21 November 1949
• Docket Number: No. 28547.,28547.
• Parties: GROSS INCOME TAX DIVISION et al. v. W. B. CONKEY CO.
• Court: Supreme Court of Indiana

228 Ind. 343
88 N.E.2d 563

GROSS INCOME TAX DIVISION et al.
v.
W. B. CONKEY CO.

No. 28547.

Supreme Court of Indiana.

Nov. 21, 1949.

The W. B. Conkey Company, a corporation, brought action against the Gross Income Tax Division of the State of Indiana to recover a refund of gross income tax, and, at the request of the defendant, the Indiana Department of State Revenue and the Indiana Revenue Board were made parties defendant.

A judgment was rendered for the plaintiff by the Superior Court Room 5, Lake County, Harold Strickland, J., and the defendants appealed, and the plaintiff moved to dismiss the appeal.

The Supreme Court, Young, J., overruled the motion to dismiss the appeal, holding that fact that only one of the defendants filed a motion for new trial and fact that assignment of errors was in behalf of only one of the defendants was immaterial, and that defects in brief were not sufficiently serious as to require dismissal of appeal.

[88 N.E.2d 563]

J. Emmett McManamon, Atty. Gen., John J. McShane, Lloyd C. Hutchinson, Edward L. Hamilton, Deputy Attys. Gen., for appellants.

Charles G. Bomberger, Hammond, Bomberger, Morthland & Royce, Hammond, for appellee.

YOUNG, Justice.

This case is before us now on a motion to dismiss the appeal for reasons growing out of an awkward record and a brief, which appellee criticizes, not entirely without cause.

[88 N.E.2d 564]

This was an action by appellee against the Gross Income Tax Division of the State of Indiana only for a refund of gross income tax alleged by appellee to have been wrongfully collected. It was commenced on March 1, 1946. After the commencement of this action the General Assembly passed an act creating the Indiana Department of Revenue and the Indiana Revenue Board, consisting of the Governor, Auditor and Treasurer. Acts of 1947, ch. 10, p. 49; § 64-2901 et seq., Burns' 1943 Repl., Pkt.Supp. The case was not reached for trial until June 28, 1948, on which day before the commencement of the trial the Gross Income Tax Division of the State of Indiana, the then only named defendant in the case, suggested the creation of the new department and new board and asked that they be made parties defendant to the action, and the court granted such request, and said Department and Board appeared by the Attorney General and his deputies and joined in the answer theretofore filed by the Gross Income Tax Division. The case was tried and the court found for plaintiff in the total sum of $30,278.60, and rendered judgment in that amount against the Gross Income Tax Division of the State of Indiana, and the Department of State Revenue and the Indiana Revenue Board.

Thereafter a motion for a new trial was filed only in the name of the Gross Income Tax Division of the State of Indiana, which was overruled. Notwithstanding the judgment was made to read against the Indiana Department of State Revenue and the Indiana Revenue Board, which the Gross Income Tax Division had caused to be made parties, no motion for a new trial was filed in their behalf and the judgment, as against them, was not otherwise attacked. This led to confusion and is at the bottom of the first phase of appellee's motion to dismiss the appeal.

The title to the assignment of errors filed in this court included as appellants all of those against whom judgment was rendered, and W. B. Conkey Company as appellee. The body of the assignment of errors, omitting...