32 Ind. App. 457 | Ind. Ct. App. | 1904
Tke predecessor of appellee, as treasurer of Jay county, filed in tlie circuit court bis petition under
We do not agree with counsel for appellant that the petition should state the facts showing how the assessments came on the duplicate. The petition clearly shows “the fact and amount of the delinquency,” and this is all the statute, by its terms, requires. The language used in the statute manifestly means the fact of the delinquency and ■the amount of the delinquency. With this construction of the language used, the petition follows the statute, and was good against a demurrer. Moreover, as the complaint does not wholly omit the averment of any fact required by the statute, the special finding, it has often been held, would correct the error, if any, in the overruling of the demurrer.
The court found substantially the following facts: Aaron W. Letts, Sr., died intestate in August, 1902, having been a resident taxpayer of Jackson township, Jay county, for about thirty years. Before the commencement
The court stated as conclusions of law that the administrator should be ordered to pay out of assets in his hands $3,486, taxes assessed on omitted property,. $371.95, tax assessed by the board of review, and $558,96, penalty and interest, — in all $4,416.9.1.
It is first argued by appellant’s counsel that an assessment made by the county assessor, and placed upon the tax duplicate by the county auditor, attempting to make an assessment against property as omitted property, is invalid, where the property sought to be assessed is not described.
Section 8560 Burns 1901 provides for the assessing of omitted property by the county auditor; and §8531 Burns 1901 makes it also the duty of the county assessor to assess omitted property. Section 8454 Burns 1901 provides that “in entering personal property upon the proper tax books for the purpose of taxation, it shall be a sufficient description of the same to use the words ‘personal property,’ and such phrase shall comprehend and embrace all species .of personal property belonging to the party charged therewith, on the tax books, and no more specific description or designation thereof shall be necessary.”
The finding shows that during the years in question the decedent was the owner of personal property largely in excess of the amount returned by him for taxation, and which he had failed to return for taxation, and states the kind of property, amounting to $20,00Q, which was placed upon the tax duplicate as omitted property, and that the sums placed on the duplicate were owned by the decedent at the times named, and had been omitted from taxation by reason of the decedent having failed to make trae and correct assessment lists, and that the assessment made by the auditor for each of the years 1889 to 1898, inclusive, was on omitted personal property. The findings also show that the assessment was entered upon the duplicate for the year
Section 8411 Burns 1901 designates what the term “personal property,” for the purpose of taxation, shall include, and §8454, supra, expressly provides that in entering personal property upon the tax books for taxation it shall be sufficient to use the words, “personal property.” The statute (§8560) giving the auditor power to assess omitted property also provides, “to enable him to do which he is invested with all the powers of assessors under this act.”
In this proceeding by the treasurer, he acts from the duplicate placed in his hands by the auditor who made the assessment. Section 8642 Burns 1901 provides that no general tax, assessed by an officer authorized to make assessments, “or which if made by another person or may be adopted by such officer as his act shall be held to be illegal or invalid for want of any matter of form in any proceeding not affecting the merits of the case, and which shall not prejudice the rights of the party assessed. And all taxes assessed upon any property in this State, shall be presumed to be legally assessed until the contrary is affirmatively shown * * Under this provision, the assessment made by the auditor must stand, if not overthrown by a preponderance of evidence. See Gallup v. Schmidt, 154 Ind. 196, 183 U. S. 300, 22 Sup. Ct. 162, 46 L. Ed. 207; Saint v. Welsh, 141 Ind. 382.
It is further argued that the assessment placed on the duplicate by the auditor by order of the board of review is illegal, because the findings do not show any notice was given. Under §8532 Burns 1901 the board of review has power to add omitted property to an assessment. International Bldg., etc., Assn. v. Board, etc., 30 Ind. App. 12; Graham v. Russell, 152 Ind. 186. This assessment made by the board was for the year 1899. What is said in
In Saint v. Welsh, 141 Ind. 382, suit was brought by an executor to enjoin the collection of taxes assessed on omitted property added to the duplicate by the county assessor. In that case the court, by Jordan, J., said: “Where one assails the action or proceedings of a county assessor had in pursuance of the law of 1891, as was done in the case at bar, by an action seeking injunctive relief, in order to succeed he must establish that either the act or proceedings of such officer were void for a failure to comply with some material provision of the statute which operated to the prejudice of the taxpayer complaining, or that the property, money or means in qiiestion subject to taxation had been duly listed and returned therefor.” See Adams v. Davis, 109 Ind. 10; Smith v. Rude Bros. Mfg. Co., 131 Ind. 150; Reynolds v. Bowen, supra; Gallup v. Schmidt, supra; Buck v. Miller, 147 Ind. 586, 37 L. R. A. 384, 62
When the appellant was called upon by petition to show cause why the taxes should not be paid,'he filed an answer in three paragraphs. He was required to overcome the presumption that the taxes' assessed were legally assessed. The burden'upon him to aver and prove facts showing the tax to be invalid, in a suit by him to enjoin the collection of these taxes, would not have been different from the burden resting upon him in this proceeding. If he claimed that the assessment by the board of review was invalid because no notice was given, it was incumbent upon him to allege and prove the fact. This was not done. To sustain the petitioner it was not necessary that the finding should show that notice was given; but to sustain appellant it was necessary that the finding should show that notice was not given. Gallup v. Schmidt, supra; Buck v. Miller, supra.
The findings state that .in placing the omitted property on the tax duplicate the officers acted in good faith and without any fraud. As the burden was upon appellant to show that the claim asserted by the officers was groundless, wo can not say that the findings are not sustained by the evidence. Saint v. Welsh, supra; Gallup v. Schmidt, supra.
It is further argued that the finding of facts does not sufficiently describe the omitted property sought to be taxed. It is found that during the years in question the decedent “was the owner of and in possession of personal property consisting of cash on hands, money loaned, mortgages, oil storage receipts, largely in excess of the amounts so returned by him for taxation,” which amount was withheld from the officers, omitted from the schedule, and escaped taxation. The court also found the amount of “omitted personal property” for each of the years named, and the amount of taxes due and owing thereon. Under
JudgmenUaffirmed.