Gross Income Tax Division v. National Bank & Trust Co.

• Decision Date: 02 June 1948
• Docket Number: 28362.
• Citation: 79 N.E.2d 651,226 Ind. 293
• Court: Indiana Supreme Court
• Parties: GROSS INCOME TAX DIVISION v. NATIONAL BANK & TRUST CO. et al.

79 N.E.2d 651

226 Ind. 293

GROSS INCOME TAX DIVISION v. NATIONAL BANK & TRUST CO. et al.

No. 28362.

Supreme Court of Indiana

June 2, 1948

Appeal from St. Joseph Superior Court No. 1; J. Fred Bingham judge.

Cleon H. Foust, Atty. Gen., and John J. McShane, Lloyd C Hutchinson, and Eugene M. Fife, Jr., Deputy Attys. Gen., for appellant.

Jones, Obenchain & Butler and John Degnan, all of South Bend, for appellee.

O'MALLEY Judge.

The appellees are either trustees of or the beneficiary under trusts created by the terms of the wills of Robert P. Milton and Clara I. Milton, both deceased. The Gross Income Tax Division claimed certain amounts of tax due on transactions by the executors and trustees. Reports were filed and the tax was paid and then a claim for refund was filed with the division. The allowance of the refund was refused and an action was commenced to recover the amount claimed with interest from the time of payment. The action was filed in Superior Court No. 1 of St Joseph County, and one paragraph of the complaint requested instructions from the court in an effort to have the court enter a declaratory judgment relieving the trustees from the necessity of filing reports with or paying a tax to the Gross Income Tax Division. To this paragraph of complaint asking for instructions, a demurrer was filed and on May 22, 1946, the demurrer was sustained. The appellees then refused to plead further and judgment was entered on this paragraph of complaint to the effect that plaintiffs take nothing and that defendant recover its costs.

The assignment of cross-errors, in which the sustaining of the demurrer to the first paragraph of complaint is asserted as an independent assignment of error, was filed in this court on September 18, 1947. The rules of this court, for the taking of appeals, allow 90 days from the date of a judgment or the overruling of a motion for a new trial in which to file a transcript and assignment of errors. Rule 2-2 of the Supreme Court of Indiana.

In the case of Home Electric Light & Power Co v. Globe Tissue Paper Co., 1896, 145 Ind. 174, 175, 44 N.E. 191, it is said that:

"A final judgment is one which determines the rights of the parties in the suit, or a distinct and definite branch of it, and reserves no further question or direction for future determination."

In the case of Klever v. Seawall, 1894, 65 F. 373, 377, 12 C.C.A. 653, 657, Justice Taft speaking for the Sixth Circuit Court of Appeals made the following statement:

'The amended petition united three causes of action--First, a suit for recovery of the possession of land; second, an action for trespass for mesne profits; and, third, an action for partition. The judgment entered December 16, 1891, found for the plaintiffs on the first cause of action, and adjudged that they were entitled to the possession of the undivided one-third interest sued for, and awarded the costs on that issue. This was, so far as the first cause of action was concerned, a final judgment. * * * As the judgment of December 16, 1891, adjudging title and right of possession in plaintiffs, was a final judgment, the time within which a writ of error could be brought to review it began to run from that date, and expired six months thereafter. The writ of error in this case was not sued out until August 28, 1893. We have no power, therefore, to review the correctness of that judgment, and the first assignment, which seeks to have us do so, cannot be sustained.'

Black on Judgments, 2d Ed., Vol. 1, Sec. 24, pp. 37, 38, states, in effect, that the general rule, that all issues in a cause must be adjudicated before the judgment is final, does not apply 'where several distinct causes of action are united in the same suit * * *.'

Elliott on Appellate Procedure, Sec. 99, p. 79, states that where the case is one of a class where the judgment is final as to the particular issues, and such issues do not affect the issues in the main suit, the judgment is final and appealable as such. This class of cases forms an exception to the general rule, but the exception is more apparent than real. See Ebenezer Old People's Home v. Bernhard, 1935, 100 Ind.App. 636, 196 N.E. 129.

In the instant case the first paragraph of complaint requested declaratroy relief by way of instructions as to the future conduct of the trustees. The second paragraph of complaint requested a judgment for taxes claimed to have been illegally collected from the trustees. The cause of action in the one was in no way related to the cause of action stated in the other. There were two distinct causes of action and therefore, we are constrained to hold that the claimed error in sustaining the demurrer cannot be...