Ropp v. Fulton

• Decision Date: 25 May 1915
• Docket Number: No. 22547.,22547.
• Citation: 183 Ind. 251,108 N.E. 946
• Parties: ROPP v. FULTON.
• Court: Indiana Supreme Court

183 Ind. 251

108 N.E. 946

ROPP

v.FULTON.

No. 22547.

Supreme Court of Indiana.

May 25, 1915.

Appeal from Circuit Court, Jay County; Robert M. Vanatta, Special Judge.

Proceedings by John B. Ropp, as Treasurer, against Dink M. Fulton, trustee, to enforce the payment of taxes due upon the property of the beneficiary. From a judgment denying the relief, the treasurer appeals. Affirmed.

Richard H. Hartford, of Portland, for appellant.

Frank B. Jaqua, of Portland, for appellee.

COX, J.

A provision of the tax law of 1891, as it was amended in 1897, requires a trustee, among other fiduciaries named, to pay the taxes due upon the property of the cestui que trust. And the statute further provides that in case he shall neglect to pay any installment when due, when there is money enough on hand to pay the same, the county treasurer shall present to the circuit court of the county a brief statement in writing signed by him as such county treasurer setting forth the fact and amount of such delinquency, and such court shall at once issue an order directed to such delinquent commanding him to show cause within five days thereafter why such tax penalty and costs should not be paid, and upon his failure to show good and sufficient cause for such nonpayment, the court shall order him to pay such taxes out of the assets of the estate in his hands. Acts 1897, p. 226; Burns 1914, § 10340.

Under this statute, appellant, as county treasurer of Jay county, presented to the lower court his statement in writing to require the trustee of the Citizens' Gas & Oil Mining Company, a domestic private corporation, defunct, except for closing up its affairs by a trustee, by reason of the expiration of its chartered life, to pay taxes on a money judgment recovered for it by such trustee. Muncie, etc., Traction Co. v. Citizens', etc., Gas Co. (1912) 179 Ind. 322, 100 N. E. 65. At the time appellant instituted the proceeding the judgment had been paid and the money was in the hands of the clerk of the circuit court, and for this reason the clerk was made a party. The clerk successfully deactsubject to the precedent condition that he shall give the notice and provide the hearing therein contemplated. The court in this case found that the notice was not given, and the legal conclusion properly followed that the tax was illegal and void. Cummings, Treasurer, v. Stark (1894) 138 Ind. 94, 101, 34 N. E. 444;Deniston, Auditor, v. Terry (1895) 141 Ind. 677, 41 N. E. 143.

[2] But counsel for appellant contends that section 10310, supra, has been modified in the matter of notice as a condition precedent to the authority of the auditor to make and enter an assessment of omitted property by the act approved March 4, 1911. Acts 1911, p. 479; section 10310a, Burns 1914. We cannot agree with this contention. There is nothing in the act of 1911, title or purview, which purports to repeal or amend the former section in the matter of notice. It does no more than give to property owners the remedy of an appeal to the circuit court from “any finding, conclusion or decision of the county assessor, or any county auditor, any county treasurer or any other officer or officers or board whose duty it may be to investigate, decide, assess and place on the tax duplicate *** any property subject to taxation and omitted to be returned.” The appeal is granted on condition that it shall be taken in ten days by the person against whom the taxes...