Small v. City of Lawrenceburgh

• Decision Date: 01 May 1891
• Citation: 128 Ind. 231,27 N.E. 500
• Parties: Small v. City of Lawrenceburgh et al.
• Court: Indiana Supreme Court

128 Ind. 231

27 N.E. 500

Small

v.City of Lawrenceburgh et al.

Supreme Court of Indiana.

May 1, 1891.

Appeal from circuit court, Dearborn county; J. D. New, Special Judge.

McMullen & Johnston, for appellant. Warren N. Hauck, for appellees.

Olds, C. J.

The appellant brought this suit against the appellees to enjoin the collection of certain taxes. The court sustained the separate demurrers of the appellees to the complaint, to which rulings the appellant excepted, and refused to plead further, and the court rendered judgment on demurrer for the appellees. The rulings in sustaining the separate demurrers of the appellees to the complaint are assigned as error. It is shown by the averments in the complaint that on and prior to April 1, 1883, there existed in the city of Lawrenceburgh a national bank, known and designated as the City National Bank of Lawrenceburgh, Ind., said bank having been regularly organized, and operated under the laws of the United States. The capital stock of the bank was $100,000, divided into 1,000 shares, of $100 each. On April, 1883, De Witt C. Fitch owned 787 shares of the capital stock of said bank, and Henry C. Fitch owned 60 shares of said capital stock. That on said date said bank was largely indebted, and the capital stock was in fact of no value. That between the 1st day of April and the 1st day of June, 1883, the assessor for the city of Lawrenceburgh assessed to and against said bank the entire amount of said capital stock at its full face value, without designating any portion of the same as being owned by any particular owner, and the same was placed on the city tax duplicate for said year as an assessment against said bank; the tax assessed upon the same against the bank being $1,143.45, which so remained upon said duplicate up to July, 1884. That on the 2d day of August, 1883, De Witt C. and Henry Fitch assigned, conveyed, transferred, and delivered all their property, real and personal, except said bank-stock, to said bank, and on the same day they each assigned the said bank-stock so owned by them, respectively, to Leah Fitch, wife of De Witt C. Fitch. That afterwards the creditors of the bank and of said Henry and De Witt Fitch commenced suit to set aside said transfers as fraudulent and void, and on the final adjudication in said cause, in February, 1884, said transfers were set aside, and said appellant was appointed receiver. That in July, 1884, the city clerk of said city of Lawrenceburgh changed said tax duplicate of 1883, as to the said stock assessed to said bank, by writing therein under said assessment the words, “Transferred to stockholders July, 1884,” and by adding $6,000 to the taxable property of said Henry Fitch, and $78,700 to the taxable property of said De Witt C. Fitch, on the duplicate, without designating the kind of property on account of which said sums were added to the assessments of said Fitch and Fitch, and without any notice to the appellant, and without the knowledge or consent of said Fitch and Fitch. That Fitch and Fitch were each, respectively, indebted, on the 1st day of April, 1883, in a sum in excess of the amount of the stock so owned by them. That the bank owned real estate on said 1st day of April, 1883, of the value of $5,000, and which was...