Sears, Roebuck & Co. v. State ex rel. Ryan

• Decision Date: 13 April 1967
• Docket Number: No. 30204,30204
• Citation: 248 Ind. 169,225 N.E.2d 175
• Court: Indiana Supreme Court
• Parties: SEARS, ROEBUCK & CO., Appellant, v. The STATE of Indiana on the relation of Thelma Pearl RYAN, Administratrix of the Estate of Irl O. Dudley, Deceased, and Thelma Pearl Ryan, Taxpayer, John P. Sutton, Auditor of Marion County, and E. Allen Hunter, Treasurer of Marion County, Appellees. John P. SUTTON, Auditor of Marion County, and E. Allen Hunter, Treasurer of Marion County, Cross-Appellants, v. SEARS, ROEBUCK & CO., the State of Indiana on the relation of Thelma Pearl Ryan, Administratrix of the Estate of Irl O. Dudley, Deceased, and Thelma Pearl Ryan, Taxpayer, Cross-Appellees.

Page 175

225 N.E.2d 175

248 Ind. 169

SEARS, ROEBUCK & CO., Appellant, v. The STATE of Indiana on the relation of Thelma Pearl RYAN,

Administratrix of the Estate of Irl O. Dudley, Deceased, and

Thelma Pearl Ryan, Taxpayer, John P. Sutton, Auditor of

Marion County, and E. Allen Hunter, Treasurer of Marion

County, Appellees.

John P. SUTTON, Auditor of Marion County, and E. Allen

Hunter, Treasurer of Marion County, Cross-Appellants, v. SEARS, ROEBUCK & CO., the State of Indiana on the relation

of Thelma Pearl Ryan, Administratrix of the Estate

of Irl O. Dudley, Deceased, and Thelma

Pearl Ryan, Taxpayer, Cross-Appellees.

No. 30204.

Supreme Court of Indiana.

April 13, 1967.

Harry T. Ice, Geoffrey Segar, James E. Hawes, Jr., Indianapolis, for appellant, William J. Coughlin, Chicago, Ice, Miller, Donadio & Ryan, Indianapolis, of counsel.

Richard J. Hartman, Indianapolis, for appellees, O. T. Kilgore, Indianapolis, of counsel.

JACKSON, Judge.

This is an appeal by Sears, Roebuck & Co. from a judgment of the Superior Court of Marion County issuing a mandate to the Auditor and Treasurer of Marion County, each of whom is named as an appellee herein, pursuant to the Complaint for Mandate of the appellee-relatrix, Thelma Pearl Ryan, as administratrix of the estate of Irl O. Dudley, and as an individual. The action at bar was commenced by the appellee-relatrix by the filing of a verified complaint for mandate on the 5th day of November, 1954, against the Auditor and Treasurer of Marion County, in which action appellant was granted leave to intervene as a party defendant.

The issues were formed in the trial court by the Complaint for Mandate, as amended at the pre-trial conference, the 'Supplement Complaint in Fraud, to Complaint for Mandate Herein', the Answer of the appellees Treasurer and Auditor as amended by interlineation at the pre-trial conference, the Answer of appellant as an intervening defendant, and the Reply to Answer in Intervention filed by the appellee-relatrix.

The issues for the trial court to decide were whether a mandate should issue to the Auditor and Treasurer of Marion County, which would require them to perform certain acts necessary to collect personal property taxes on goods, wares and merchandise om layaway or in warehouses allegedly omitted from assessment during the years 1938 to 1947, as shown on specifically identified tax duplicate, or whether by reason of certain prior judgments the liability of the appellant for such taxes had been finally and conclusively determined and the amount so determined subsequently paid, which judgments were not open to a collateral attack.

On September 23, 1958, the issues were submitted to the Superior Court of Marion County, without the intervention of a jury, upon a stipulation of the evidence by the parties, supplemented by the testimony of two witnesses, E. Allen Hunter and C. S. Ober.

The stipulation of the parties omitting certain exhibits, captions, signatures, certifications and formal parts, was as follows:

'The parties in the above entitled cause hereby submit to the Court the following as the stipulation of all the evidence submitted to the Court in the cause, and it is agreed and confirmed by all the parties that the facts herein recited shall be the evidence submitted and that all exhibits referred to herein shall be incorporated and considered as parts of the evidence respectfully, without further recital of incorporation or inclusion.

'1. On the 3rd day of November, 1948, the Auditor of Marion County, Indiana, entered and made an assessment for omitted taxes against Sears-Roebuck & Company, hereinafter called Sears, said assessment being for alleged personal property not reported for taxation, being as shown on 'Exhibit A,' the taxes claimed due under said assessment being in the sum of $204,941.50.

'2. Sears filed a statutory appeal, posted bond, and subsequently, on the 25th day of February, 1949, the Marion Circuit Court entered its decree setting aside the assessment of the Auditor and ordering a new assessment made in the place thereof. A copy of said decree is attached hereto as 'Exhibit B.'

'3. Subsequently thereto and following the judgment set out in 'Exhibit B' and prior to the decision of the Indiana Appellate Court reported in 123 Indiana Appellate 358, the auditor entered an assessment of omitted property, a copy of which is incorporated as 'Exhibit C.'

'4. The Marion Circuit Court on February 26, 1949, made its entry, certified copy of which is incorporated as 'Exhibit D.'

'5. That no subsequent action was ever taken by the auditor of Marion County, Indiana, concerning the omitted property originally assessed as shown in 'Exhibit A.'

'6. On the 27th day of May, 1949, plaintiff's decedent filed two paragraphs of petition in the Marion Circuit Court, praying that the foregoing entry of the Court on February 25, 1949, be set aside and vacated; said petition bore the cause number, In Re #6423. A copy of said petition is incorporated as 'Exhibit E.'

'7. To which petition the Circuit Court sustained Sears' amended demurrer and upon the petitioner Dudley's refusal to plead over, judgment was entered against the petitioner.

'8. Petitioner appealed the foregoing judgment to the Appellate Court of Indiana, which handed down its opinion and decision therein on the 31st day of December, 1952. Pending the appeal, petitioner Ryan in this cause was substituted following the death of Dudley. The decision of the Appellate Court is found in Volume 123, page 358, of the Official Reports of the Appellate Court; 109 N.E.2d 620.

'9. Carl L. Compton was selected by the parties by striking and was qualified as Special Judge in the cause, No. 6423.

'10. The instant action was filed in the Marion Superior Court on the 5th day of November, 1954.

'11. On the 8th day of November, 1954, petitioner Ryan, in No. 6423, the same person as petitioner in this cause, filed her verified petition for Writ of Mandamus in the Appellate Court against the Marion Circuit Court and the Special Judge thereof, seeking an order that the Judge carry out the mandate of the Appellate Court's decision handed down on the 31st day of December, 1952.

'12. Subsequent thereto, the Judges of the Appellate Court in informal conference verbally gave their instruction to the Circuit Court and the Special Judge thereof, through counsel, and postponed action on a permanent writ, and no further action by the Appellate Court was ever taken on said petition for mandate.' (See footnote 1 ¹)

'13. Subsequently, the Marion Circuit Court, by the Special Judge, Carl Compton on December 9, 1954, entered judgment. A copy of said judgment entry is incorporated herein as 'Exhibit F,' from which judgment no appeal was taken by anyone and which is now in full force and effect.

'14. On the same date, the Circuit Court dismissed the second paragraph of petition in No. 6423, pursuant to petitioner's motion to dismiss.

'15. On the 16th day of December, 1954, petitioner filed in said cause her third paragraph of petition a certified (sic) of which is incorporated herein as 'Exhibit G.'

'16. On the 22nd day of March, 1955, petitioner filed and subsequently perfected her change of venue of Cause No. In Re 6423 to the Hamilton Circuit Court. In said court it was No. B--394.

'17. On the 19th day of May and the 11th day of July, 1955, defendant Sears filed its paragraphs of answer to petitioner's third paragraph of petition in the Hamilton Circuit Court. Copies of such answers are incorporated herein as 'Exhibits H and I.'

'18. On the 15th day of May, 1956, the Marion Superior Court heard evidence in this instant cause, at which time the following were entered as exhibits by petitioner as evidence in the cause:

'The entire transcript of the proceedings in the Marion Circuit and Hamilton Circuit Courts of Indiana and the Appellate Court of Indiana in cause No. In Re 6423 of Marion Circuit Court, No. B--394 in Hamilton Circuit Court.

'19. Subsequently, on the 15th day of July, 1955, the Hamilton Circuit Court entered its judgment in No. 6423 as venued from the Marion Circuit Court, which judgment was that the petitioner take nothing by her petition. A certified copy of said judgment is incorporated as 'Exhibit J.'

'20. On the 13th day of September, 1956, petitioner filed her appeal from the Hamilton Circuit Court by filing a transcript of the proceedings in the Supreme Court of Indiana.

'21. On March 14, 1958, petitioner dismissed her appeal from the judgment of the Hamilton Circuit Court.

'22. On the 11th day of April, 1957, petitioner filed her complaint in the Hamilton Circuit Court to review the aforesaid judgment of that Court, said cause being numbered B--1391 in said Court, incorporated herein as 'Exhibit K.'

'23. Subsequently, Sears, as defendant in said cause, filed its answer therein, which answer is incorporated herein as 'Exhibit L.'

'24. On April 11, 1958, the Hamilton Circuit Court entered its judgment in said cause, numbered B--1391, that the petitioner take nothing by her complaint, a certified copy of said judgment being incorporated as 'Exhibit M."

Thereafter E. Allen Hunter was called as a witness and testified on direct examination as follows:

'My name is E. Allen Hunter. I am Auditor of Marion County. The records of my office show that the assessment set out in Exhibit A has not been paid. The records of my office reflect that the only amount paid on the assessment set out in Exhibit C was the $20,203.72 which Exhibit C shows was paid on 2/26.'

Thereafter C. S. Ober was called as a witness and testified on direct examination as follows:

'My name is C. S. Ober, I am the Treasurer of Marion County. The records of my office show that the assessment set out in Exhibit A has not been paid. The records of my office reflect the only amounts paid on the assessment set out on Exhibit C was the $20,203.72 which Exhibit C shows was paid on 2/26.'

Thereafter, the court rendered its judgment...