Reynolds v. Bowen

• Decision Date: 06 March 1894
• Citation: 138 Ind. 434,36 N.E. 756
• Parties: REYNOLDS, Auditor, et al. v. BOWEN.
• Court: Indiana Supreme Court

138 Ind. 434

36 N.E. 756

REYNOLDS, Auditor, et al.

v.BOWEN.¹

Supreme Court of Indiana.

March 6, 1894.

Appeal from circuit court, Carroll county; E. B. Sellers, Judge.

Action by Nathaniel W. Bowen, administrator de bonis non of Abner H. Bowen, against Isaac Reynolds, auditor, and others. From a judgment ordering the auditor and treasurer to strike from the tax duplicate certain amounts placed upon it as omitted property, defendants appeal. Reversed.M. A. Ryan and Gould & Eldridge, for appellants. Pollard & Pollard and M. Winfield, for appellee.

HOWARD, C. J.

On the 17th day of September, 1891, the appellee began this action against the appellants by filing in the Carroll circuit court his complaint in three paragraphs, asking for the cancellation of certain taxes charged against his decedent's estate. The questions presented by the record arise upon the overruling of appellants' demurrers to the complaint. The appellants refusing to plead further, judgment was rendered against them, and the auditor and treasurer were ordered to cancel and “strike from the tax duplicate of Carroll county, Ind., the several amounts so placed upon said duplicate by said auditor as omitted property.” From the transcript of the proceedings before the auditor, which is set out in the complaint, it appears that the auditor, having received information that certain personal property of the decedent had not been listed for taxation for the years from 1881 to 1889, inclusive, issued to the administrator a written notice requiring him to appear and show cause why such omitted property should not be added to the tax duplicate. In response to this notice, the administrator appeared before the auditor, and moved to set aside the notice, as insufficient, which motion was overruled by the auditor. The administrator thereupon answered, first repeating his objection to the notice, as not sufficiently specific in the description of the omitted property; stating, also, that the administrator had no means of knowing whether the sums charged as omitted were correct or not, and that, as administrator, it was his duty to deny, and he did deny, each item so charged, and demanded that strict proof be made. It was further stated in the answer that for each of the years named “the deceased subscribed and swore to a tax list made out in due form of law, and handed it to the proper assessor, wherein the deceased returned credits and money loaned [in the several amounts named]; that this valuation was approved by the assessor, who duly returned the same to the auditor of the county; that said valuations were duly submitted to the board of equalization, and duly approved by said board, and the auditor of the county duly placed the same upon the tax duplicate; that the deceased paid in full his state, county, and school tax therein.” The administrator further answered that section 259 of the general tax law, approved March 6, 1891, repealed all laws and parts of laws within the purview of that act, including section 1 of an act approved March 9, 1889, which was an act to amend section 147 of an act concerning taxation, approved March 29, 1881; that there is therefore no law now in force for the taxation of omitted property but section 142 of the tax law of 1891, which last section is prospective, only, and does not authorize the assessment of property so omitted prior to 1891. The statement filed by the auditor continues: “In this investigation, I was embarrassed by the refusal of those who had the custody of the books, notes, mortgages, and papers of the deceased to produce them in evidence, and hence I am compelled to decide from the best evidence before me. It clearly appears from the evidence that the notes and mortgages which are of record in this and surrounding counties are of the value shown by the records.” “Many witnesses testified before me relating to said alleged omitted property, and many records and documents were read in evidence. The hearing was continued from day to day until the 10th day of April, 1891, when (all the evidence having been given), by agreement of all parties, I took the case under advisement. I now find that during all the years, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, and 1889 the said Abner H. Bowen was a resident of the city of Delphi, in Carroll county, Ind.; that he departed this life on the 10th day of February, 1890, and at the time of the commencement of this proceeding, and until the 3d day of July, 1891, the said William R. Stewart was the administrator of Bowen's estate; it being suggested that Nathaniel W. Bowen succeeded Stewart, as such administrator, on the 3d day of July, 1891. I further find that for the said years the said Bowen's personal property was not all listed for taxation, but, on the contrary, that property belonging to him was omitted from the assessment books and from the proper tax duplicates for the several years, which is and was of the following value: For the year 1881, moneys, money loaned, and credits, $104,600; for the year 1882, moneys, money loaned, and credits, $134,000; for the year 1883, moneys, money loaned, and credits, $146,000; for the year 1884, moneys, money loaned, and credits, $162,500; for the year 1885, moneys, money loaned, and credits, $172,000; for the year 1886, moneys, money loaned, and credits, $175,000; for the year 1887, moneys, money loaned, and credits, $218,840; for the year 1888, moneys, money loaned, and credits, $219,000; for the year 1889, moneys, money loaned, and credits, $252,000. I find that the above omitted property was owned by said Bowen on the 1st day of April of the years above named; and I now assess the same as omitted property, which has unjustly escaped taxation, and I now correct the proper tax duplicates of said county accordingly, and add said omitted property thereto.”

It was averred in the complaint that the tax duplicates, as so altered by the addition of such omitted property, had been placed in the hands of the county treasurer for collection; that the taxes alleged to be due thereon amount to about $30,000; and that the treasurer is insisting on their payment. The question has therefore been raised as to whether this is a suit for the cancellation of the alleged illegal taxes, or a suit to enjoin their collection. While the form of pleadings shows an action for cancellation, yet the nature of the action, and the result aimed at, do not differ from those of a perpetual injunction, and we agree with counsel for appellee that the question so raised is not important. Either form of action invokes the equitable jurisdiction of the court, and, when all the necessary parties are before the court, such equitable relief may be granted as is consistent with the facts proved. Keifer v. Summers (decided at this term) 35 N. E. 1103. The objections to the auditor's assessment urged in appellee's brief are the same as those made in the complaint, and the same as those made originally in the answer to the auditor's notice to show cause why the omitted property should not be added to the duplicate. These objections we shall notice in order.

Appellee claims that “there was not in the statement filed with the auditor, or the notice issued by the auditor to the appellee, or in the finding, any such identification and description of the alleged omitted property as would authorize the auditor to assess it as omitted property.” The law authorizing the proceedings by the auditor has been on the statute book since the enactment of the tax law of 1881, where it stands as section 147. It is section 6416, Rev. St. 1881, section 2129 of Elliott's Supplement, and section 142 of the tax law of 1891, and, so far as is necessary to set out, is as follows: “Whenever the county auditor shall discover or receive credible information, or if he shall have reason to believe that any real or personal property has from any cause been omitted in whole or in part in the assessment of any year, or number of years from the assessment book, or from the tax duplicate, he shall proceed to correct the tax duplicate and add such property thereto, with the proper valuation, and charge such property and the owner thereof with the proper amount of taxes thereon. To enable him to do which, he is invested with all the powers of assessor under this act. But before making such correction or addition, if the person claiming to own such property, or occupying it, or in possession thereof, resides in the county and is not present he shall give such person notice, in writing, of his intention to add such property to the tax duplicate, describing it in general terms, and requiring such person to appear before him at his office at a specified time, within five days after giving such notice. and to show cause, if any, why such property should not be added to the tax duplicate, and if the party so notified does not appear or if he appears and fails to show any good and sufficient cause why such assessment shall not be made, the same shall be made, and the county auditor shall, in all cases, file in his office a statement of the facts or evidence, on which he made such correction.” As to the statement made to the auditor, and of which complaint is made, it would seem that it is sufficient, under the statute, if the auditor receive any information, written or oral, or even “if he shall have reason to believe” that any property has been omitted from taxation. The statement, whether written or not, is sufficient if it inform the auditor that property has been omitted which should have been assessed. Appellee considers that the written notice to the property owner should set out the omitted property by specific description. But the statute requires only that the auditor “shall give such person notice, in writing, of his intention to add such property to the tax duplicate, describing it in general terms.” “Taxes,” as said in Barker v. Morton, 19 Ind. 146, “are not assessed...