Theobald v. Clapp

• Decision Date: 26 January 1909
• Docket Number: No. 6,440.,6,440.
• Citation: 43 Ind.App. 191,87 N.E. 100
• Parties: THEOBALD, County Treasurer, v. CLAPP.
• Court: Indiana Appellate Court

43 Ind.App. 191

87 N.E. 100

THEOBALD, County Treasurer,

v.CLAPP.

No. 6,440.

Appellate Court of Indiana, Division No. 2.

Jan. 26, 1909.

Appeal from Circuit Court, Shelby County; Will M. Sparks, Judge.

Action by Arthur B. Clapp against Charles H. Theobald, treasurer of Shelby county. From a judgment for plaintiff, defendant appeals. Affirmed.

George H. Meiks, Frank L. Littleton, and A. F. Wray, for appellant. Carter & Morrison, for appellee.

COMSTOCK, P. J.

Appellee brought this action in the court below to have declared invalid an assessment of taxes made by the auditor of Shelby county, Ind., against him, a resident citizen of the state of Vermont, on promissory notes secured by mortgage on real estate in said county, executed by citizens of said county and owned by appellee, and by him kept from the time of their execution and his ownership of them in his possession at his residence in the state of Vermont. The cause was tried by the court; and at request of parties a special finding of fact made and the conclusions of law stated thereon, and over a motion for a new trial judgment was rendered in accordance with the finding against appellant.

Numerous errors are assigned, but the appellant relies only upon the third, fourth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth for reversal.

The third and fourth specifications of error relate to the action of the court in overruling, respectively, a demurrer to the first and second paragraphs of the complaint. These alleged errors are not included in appellant's statement of points and authorities, nor are they discussed by him. They are therefore waived.

The fourteenth, fifteenth, sixteenth, and seventeenth specifications assign that the court erred respectively, in its conclusions of law 1, 2, 3, and 4. Appellee insists that said alleged errors are not properly presented, and cannot be considered. It is well settled that the correctness of conclusions of law can be contested only by proper exception to each conclusion, and by assigning as error in this court that the trial court erred in each conclusion of law, or that the conclusion of law which is challenged is erroneous. Maynard v. Waidlich, 156 Ind. 562, 565, 60 N. E. 348, and cases cited; Wolverton v. Wolverton, 163 Ind. 26, 30, 71 N. E. 423;Midland Ry. Co. v. Dickason, 130 Ind. 164, 29 N. E. 795;Royse v. Bourne, 149 Ind. 189, 47 N. E. 827;Radabaugh v. Silvers, 135 Ind. 605, 35 N. E. 694;Medical College v. Commingore, 140 Ind. 296, 39 N. E. 744;Sweitzer v. Heasley, 13 Ind. App. 567, 41 N. E. 1064. It does not appear that any exception was taken to said conclusions of law or to either of them. They do not, therefore, under the decisions in this state, present any question for the consideration of this court.

The eighteenth specification assigns that “the court erred in rendering judgment in favor of the appellee.” It has been repeatedly held by the courts of this state that an assignment that “the court erred in rendering judgment” presents no question on appeal. Hill v. Indianapolis, etc., R. Co., 31 Ind. App. 98, 99, 67 N. E. 276;Johnston Glass Co. v. Lucas, 34 Ind. App. 418, 419, 72 N. E. 1102;Seisler v. Smith, 150 Ind. 88, 46 N. E. 993, and cases cited; Kimberlin v. Tow, 133 Ind. 696, 33 N. E. 770;Lewis v. Albertson, 23 Ind. App. 147, 157, 53 N. E. 1071.

The nineteenth specification of error assigns that the court “erred in overruling appellant'smotion for a new trial.” The grounds assigned for a new trial depend for their determination upon the evidence, which the appellee insists is not properly made a part of the record by a bill of exceptions filed within time. It appears from the record that appellant's motion for a new trial was overruled and exception taken on the 6th day of July, 1906, the same being the thirty-fifth judicial day of the May term of the Shelby circuit court, 1906; that on the 7th day of July, 1906, the same being the thirty-sixth judicial day of the May term, 1906, appellant prayed an appeal to this court which is granted upon the filing of a sufficient bond, and 120 days are given in which to file a bill of exceptions. It appears that what purports to be a bill of exceptions was filed on the 23d day of January, 1907, the same being the twenty-seventh judicial day of the December term, 1906, more than six months from the date of the overruling of appellant's motion for a new trial. It appears, also, that on the 23d day of October, 1906, the same being the fourteenth judicial day of the October term, 1906, appellee moved the court for judgment in his favor on the findings and conclusions of law, which motion was sustained, and exception taken and judgment rendered accordingly; that on the 26th day of October, 1906, the same being the seventeenth judicial day of the October term, 1906, appellant prayed an appeal to this court, which was granted upon sufficient bond being given, and 120 days were given in which to file his bill of exceptions. Without considering which allotment of time by the court in which to file the bill of exceptions govern, we think that the bill of exceptions containing the evidence is not properly in the record. The statute upon this subject reads: “The party objecting to the decision must except at the time the decision is made; but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the court. *** Provided, That if a motion for a new trial shall be filed in a cause in which such decision, so excepted to, is assigned as a reason for a new trial, such motion shall carry such decision and exception forward to the time of the ruling on such motion, and time may be then given by the court within which to reduce such exception to writing.” Section 656, Burns' Ann. St. 1908; section 638, Burns' Ann. St. 1901. This section of the statute has been construed in a recent case (Citizens' St. Ry. Co. v. Marvil, 161 Ind. 506, 511, 512, 67 N. E. 921), decided by the Supreme Court. In the course of the opinion the court say: “In this case the motions for a new trial were overruled on February 25, 1901, the second term of court after the motions were filed. The order book entry of that day's proceedings in said cause only shows these rulings, and that they were each excepted to, but by whom the exceptions were taken, it is not stated. As leave to file a bill of exceptions was not given until several days after the motion for a new trial was overruled, it was without authority, for the court can only grant such leave at the time and in the manner provided by statute. Hotsenpiller v. State, 144 Ind. 9, 11, 43 N. E. 234;Minnick v. State, 154 Ind. 379, 382-384, 56 N. E. 851.” See Nichols v. Cent. Trust Co. (present term of this court) 86 N. E. 878.

In Hotsenpiller v. State, supra, the time in which to file the bill of exceptions was not granted until four days after the motion for a new trial was overruled, while in the case at bar it was granted one day after in the first instance and three days after in the last instance. The mere difference in length of time is not material. It follows that the evidence is not before us and appellant's assignment presents no question.

For the foregoing reasons, the judgment must be affirmed.

We have, however, examined the record and considered the arguments of counsel. Among other facts specially found are the following: On the 6th day of August, 1903, the auditor of Shelby county placed upon the tax duplicate of Shelby county, Ind., as property omitted by said plaintiff, and which had been omitted from taxation for the years named-giving a tabulated statement of “cash in bank,” and notes secured by mortgages for the years 1895 to 1903, inclusive, etc. That during all his life, for more than 50 years, the said plaintiff has been a citizen of the state of Vermont and resided continuously in the city of Brattleboro, Windham county, in said state. That he has never been a resident or citizen of the state of Indiana, and never was in said state on the 1st day of April in any year. That at no time before May 1, 1898, was said plaintiff the owner of any property in the state of Indiana, or of any note or other obligation given for money loaned in said state, nor did he before then have any money loaned in said state. That about the 1st day of June, 1898, he became the owner of notes executed by persons living in Shelby county, Ind., in the sum of $150,000.40. That all of said notes and the mortgages given to secure them were transferred to him by one George Wilder, who was a citizen of...