Johnston v. State

• Decision Date: 01 June 1937
• Docket Number: 26628.
• Citation: 8 N.E.2d 590,212 Ind. 375
• Parties: JOHNSTON v. STATE et al.
• Court: Indiana Supreme Court

8 N.E.2d 590

212 Ind. 375

JOHNSTON v. STATE et al.

No. 26628.

Supreme Court of Indiana

June 1, 1937

Appeal from Fayette Circuit Court; G. Edwin Johnston, Judge.

Dailey O'Neal, Dailey & Efroymson, of Indianapolis, Chas. C Benedict, of Cincinnati, Ohio, and E. Ralph Himelick, of Connersville, for appellant.

Henry M. Dowling, of Indianapolis, Omer S. Jackson, Atty. Gen., and L. C. Hanby, of Connersville, for appellees.

FANSLER Chief Justice.

The appellee auditor of Fayette county, acting by virtue of section 64-1402, Burns' Ann.St.1933, section 15739 Baldwin's Ind.St.1934, in July, 1932, placed upon the tax duplicate, and assessed against appellant as omitted property for the years 1920 to

1932, certain personal property consisting entirely of stocks in foreign corporations, and charged appellant with taxes thereon in the total amount of $37,771.75, and placed on the duplicate, as omitted property, stock in foreign corporations assessed at $297,500 for the year 1932, the rate for that year not having been fixed. Appellant objected, excepted, gave bond, and 'appealed' from the finding and conclusion of the auditor under section 64-2103, Burns' Ann.St.1933, section 15804, Baldwin's Ind.St.1934. The auditor filed with the clerk of the Fayette circuit court a transcript of the proceedings. Appellant filed an answer in abatement, to which a demurrer was sustained. She then filed an answer in four paragraphs, the first a general denial. A demurrer was sustained to the second, third, and fourth paragraphs. There was a trial upon the issues thus formed, special findings of fact, and conclusions of law, and a judgment against plaintiff for $40,054.05.

Many errors are assigned, but, since the same questions arise under different assignments, all need not be considered.

Appellant, by verified motion conforming to the statute, asked for a change of venue from the county, which was denied. This ruling seems to have been upon the theory that the proceeding is not a civil action within the meaning of section 2-1401, Burns' Ann.St.1933, section 190, Baldwin's Ind.St.1934, providing for changes of venue, but is a special statutory proceeding, and that in such proceedings there is no right to a change of venue from the county unless the right to the change is expressly given in the statute creating the proceeding. There may have been some confusion in the cases, arising out of a failure to distinguish between 'civil cases' in which a jury trial can be demanded under the Constitution, which has been held to be that class of cases triable by a jury at common law, and 'civil cases,' as defined in chapter 1 of our Civil Procedure Act (section 2-101, Burns' Ann.St.1933, section 14, Baldwin's Ind.St.1934, which provides that there shall be but 'one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a 'civil action." The change of venue statute (section 2-1401, supra) provides that the court 'shall change the venue of any civil action upon the application of either party.' It must follow that any adversary proceeding involving the protection of private rights or the redress of private wrongs comes within the group designated as civil actions, and either party is entitled to a change of venue from the county, notwithstanding the proceeding is a special statutory one, unless there is a provision to the contrary in the statute providing for the proceeding. Thus it has been held that, where a statute creating a special proceeding provides that the proceeding shall be summary, the procedure governing ordinary civil actions does not apply, and a change of venue from the county may not be had. Clarke v. City of Evansville (1921) 75 Ind.App. 500, 131 N.E. 82; State ex rel. Weatherholt v. Perry Circuit Court et al. (1933) 204 Ind. 673, 185 N.E. 510. But it has long been recognized that, where the statute is silent on the subject of a change of venue, the mere fact that a proceeding is a special statutory one does not preclude the right to a change. Changes of judge and changes of venue from the county are provided for in the same statute, and they may be had in any civil action, which, by the statutory definition, means any action for the enforcement or protection of private rights and the redress of private wrongs. See State ex rel. Wheeler v. Leathers, Judge (1925) 197 Ind. 97, 149 N.E. 900, and cases cited; Watson's Rev. of Works' Practice and Forms, § 2. There is some language in Clarke v. City of Evansville, supra, which seems to assume that only proceedings known to the common law are civil actions under our Code. But such a conclusion is contrary to the decisions of this court, as above indicated. It is well settled that, in so-called appeals from the orders of ministerial officers and boards, courts do not review the ministerial discretion, but are concerned only with judicial questions arising out of the exercise of ministerial functions, and that the provisions for appeal furnish only a method of procedure. The proceedings instituted under such procedure, where they affect private rights, must be deemed a civil action. The court erred in overruling appellant's motion for a change of venue from the county.

It appears from the fourth paragraph of answer, to which a demurrer was sustained, and by the evidence, and the special findings, that on the 28th day of February, 1930, appellant assigned, transferred, and delivered certain stocks to the First National Bank of Cincinnati, Ohio, as trustee, with full power to exercise all of the legal rights of ownership therein for the benefit of the donor and her husband during their lives, and her daughters or their descendants thereafter. There is provision that the donor may at any time increase the principal of the trust by adding thereto other property and securities, and that all increases shall be held by the trustee under the same terms and conditions as the original trust property. The contract provides that during the lives of the donor and her husband the trustee shall first pay out of the net annual income the sum of $8,600 each year to the donor's husband, and the balance of the income to the donor; that in the event the donor survives her husband she shall receive the entire income of said estate during her life; that if the husband survives the donor he is to be paid one-third of the net income during his life, and one-third is to be paid to each of appellant's daughters. At the death of both the donor and her husband the trust terminates, and the entire trust estate is to be distributed to the daughters, or their children, or their survivors. The contract was made in Ohio, and it is provided that the trust shall be governed by the laws of the State of Ohio, and that the trustee is to...