Parkison v. Thompson

• Decision Date: 01 February 1905
• Docket Number: 20,401
• Citation: 73 N.E. 109,164 Ind. 609
• Parties: Parkison, Treasurer, v. Thompson
• Court: Indiana Supreme Court

73 N.E. 109

164 Ind. 609

Parkison, Treasurer, v. Thompson

No. 20,401

Supreme Court of Indiana

February 1, 1905

Petition to Modify Overruled May 11, 1905.

From Jasper Circuit Court; Timothy E. Howard, Special Judge.

Action by Simon P. Thompson against Robert A. Parkison as treasurer of Jasper county. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

J Frank Hanly, Will R. Wood, Charles E. Mills and W. H Parkison, for appellant.

William Darroch, Frank Foltz, H. R. Kurrie and C. G. Spitler, for appellee.

OPINION

Jordan, J.

Appellee instituted this action in the lower court perpetually to enjoin appellant, the treasurer of Jasper county, from enforcing the collection of certain taxes arising out of assessments made by the county auditor on certain personal property, consisting of money, notes secured by mortgage, and other credits belonging to appellee, which, as claimed by the auditor, he had omitted to list and return for taxation. A change from the regular judge was taken, and a special judge was called who tried the cause. The court upon request made a special finding of facts and stated conclusions of law thereon adversely to appellant. Over the latter's motion for a new trial, assigning as reasons therefor, "(1) that the findings of the court are contrary to law; (2) that the findings of the court are not supported by sufficient evidence; (3) that the findings of the court are contrary both to law and evidence"--the court rendered judgment whereby it perpetually enjoined the defendant from collecting the taxes in controversy, and ordered and decreed that the same be canceled.

From this judgment appellant appeals, and assigns as errors, "(1) that the court erred in overruling the motion for a new trial; (2) that the court erred separately and severally in each of its conclusions of law." This latter assignment of error is not discussed or urged for reversal; hence it will be deemed to have been waived.

Under the first assignment the only claim or contention urged for a reversal of the judgment is that the findings of the court are not supported by sufficient evidence, and that they are contrary to law. The evidence, in the main, upon which the cause was tried and determined, consists of that which was given orally before the court by witnesses who testified in behalf of each party. All of the evidence has been incorporated into a bill of exceptions, and by this method has been properly certified to this court.

The complaint consists of ten paragraphs. The first paragraph embraced each of the years for which the taxes in question were sought to be enjoined, viz., 1892 to 1897, 1899, 1900. By it the official character of appellant is shown, and it is further disclosed therein that appellee was, at the commencement of the action, and had been continuously from the year 1890, a resident taxpayer of Rensselaer, Marion township, Jasper county, Indiana.

It is further shown that the auditor of said county on October 30, 1902, entered of record in his office a finding to the effect that for each of said years from 1892 to 1897, 1899, 1900, the plaintiff had omitted from his tax schedule personal property of a certain value, and that said auditor assessed and extended the tax on said property on the proper tax duplicate of said county, giving the particular amount of taxes so extended or assessed for each year. It is averred that the assessments were described in the findings made by the auditor as being on moneys, mortgage notes, money loaned and credits. It is further charged that such assessments were all made solely and exclusively on money loaned and on notes secured by mortgage, and that the said several findings of the auditor were false; that appellee had in fact listed and returned for each of said years all of his personal property; and that the same had been valued by the proper taxing officer at a time when such officers had the power to value each property for the purpose of taxation.

It is further alleged that no item of personal property was omitted by the plaintiff from his tax schedule for any one of the years mentioned; that a valuation had been made on each item of his property by the proper township assessor at the time it was listed by the plaintiff. The valuations fixed by the auditor, it is charged, were simply valuations of property which had been returned by the plaintiff and valued for taxation by said assessor, and were not valuations or assessments of omitted property. It is alleged that all of the taxes levied and due upon the personal property of the plaintiff for each of the said years have been paid, and that he owes no taxes whatever, and that said auditor has no right and power to revalue and reassess said property and that his act in the assessment thereof is void. It is alleged that the defendant, as the treasurer of the county of Jasper, will collect said taxes so levied and assess as aforesaid by a levy upon and the sale of the personal property of the plaintiff, unless restrained and enjoined by the court.

The second paragraph of the complaint relates to each of the years named in the first paragraph, and proceeds upon the theory, and in effect charges, that the auditor of said county, instead of placing any omitted property belonging to the plaintiff upon the tax duplicate, had merely increased the value placed by the proper township assessor on certain property--namely mortgage notes, etc.--listed and returned by appellee for taxation for each of said years. It is averred that no specific note or notes were omitted to be returned by appellee to said assessor for any of the years in question, and that the taxes placed on the tax duplicate by the said auditor on October 30, 1902, were simply the result of a mere calculation on the fixed value of all of plaintiff's mortgage notes as a whole, each and all of which had been valued by the proper township assessor for each of the aforesaid mentioned years; that there were no valuations by the auditor of any distinct property of appellee for any of said years, and that all of said property had been duly valued by the regular township assessor, and the value thereof reported for each of said years, and the taxes thereon were assessed against the plaintiff, all of which taxes the plaintiff, before the commencement of this action, has paid. It is alleged that the attempt of said auditor to revalue said plaintiff's property was without authority of law, and it is therefore void, but that said taxes appear of record charged against plaintiff as due and unpaid, and that the defendant, unless restrained from so doing, will levy upon and sell plaintiff's property in satisfaction of said taxes.

The other paragraphs of the complaint allege in the main facts similar to those in the first and second paragraphs of the complaint, and each proceeds upon the theory that the auditor had revalued and increased the valuation of appellee's property listed by him for taxation in each of the said years over and above the value placed thereon by the township assessor at the time it was listed and returned for taxation.

Appellant answered the complaint by a general denial. By the special findings it is disclosed that the plaintiff from the year 1891 to 1901 has been a resident of the city of Rensselaer, Marion township, Jasper county, Indiana. The court further finds that for the year 1892, and each succeeding year thereafter until the year 1900, inclusive, the plaintiff listed and returned all of his personal property for taxation to the assessor of said township, and prior to the beginning of this action he had paid the taxes assessed against him for his property so returned for each of the aforesaid years. During the aforesaid years plaintiff was engaged in buying and selling swamp and wild lands in said county, the sales of which were made on long time at six per cent. interest, and the unpaid purchase money was secured by notes and mortgages, which mortgages were duly recorded in said county. These mortgages were liens upon lands sold, and were only security for the payment of the purchase-money notes.

During the years 1895 and 1896 the plaintiff was in partnership with James L. Babcock, in the live-stock business in Union township, in said county, which township was the situs of said firm, and in said township said Babcock listed the personal property belonging to the said firm for taxation. The plaintiff was also a partner of the firm of Thompson & Bros., the personal property of which firm was assessed in said city of Rensselaer, and all of the said firm's taxes for each of the years from 1892 to 1900, inclusive, have been paid.

It is found that all of the taxes mentioned in the complaint, and claimed by the defendant to be due from plaintiff, were assessed on October 30, 1902, on property claimed to have been omitted as the individual property of the plaintiff, and not as the property of either of the said firms or partnerships.

It further appears by the findings that the board of commissioners of said county employed Fleener & Carnahan as "ferrets" to discover property omitted from taxation, and on March 17, 1902, one James B. Workman, acting for them, caused a notice to be issued to the plaintiff in the name of the county assessor, claiming therein that the plaintiff owned "moneys, loans and credits" which had not been listed and assessed for taxation, the separate amount for each of the years being stated in the findings. The plaintiff appeared before the said Workman, and explained to him what was the face value of the unpaid notes on the 1st of April of each of the said years in question.

On October 30, 1902, the county auditor, by a...