174 Ind. 143 | Ind. | 1910
This is a suit in equity, brought by the State, in its capacity as a sovereign and as parens patriae and trustee for all the peopleMnd the political subdivisions of the State, to recover from Isaac M. Darnell $12,000 for taxes on property omitted from taxation, to set aside a fraudulent conveyance of real estate, to foreclose the State’s lien for taxes against such real estate, and for the appointment of a receiver. Emma Darnell voluntarily appeared, and on application was made a party defendant, and ^hereupon made claim of ownership to certain personal property mentioned in the complaint. This claim, together with the application for a receiver, was submitted to the court upon affidavits. The personal property was awarded to Emma Darnell, and a receiver was appointed to take and hold possession of the real estate in controversy during the litigation.
Appellee’s affidavit filed with its complaint was in the language of the provisions of the third subdivision of §322 Burns 1908, Acts 1885 p. 155, and alleged that appellants Isaac M. Darnell and Walter S. Darnell were not residents of this State and that the suit was to enforce a lien upon real estate in Marion county and for the possession of real estate within the State of Indiana. The court, upon this affidavit, ordered the publication of a nonresident notice, as provided for in said section, requiring appellants to appear and answer to the complaint on January 22, 1908. In response to this notice, which was duly given and proof thereof made and filed in the cause, appellants appeared specially, and filed what is termed a “plea in abatement,” to which appellee’s demurrer, for insufficient facts, was sustained. A petition to remove the cause to the federal court was filed by appellants, which petition was rejected, and thereupon appellants jointly and severally demurred to the complaint, on the grounds that the facts therein alleged were insufficient to constitute a cause of action, and that the court had no jurisdiction over the persons of the defendants or the subject-matter of the action. These demurrers were
It is averred upon appeal that the court erred: (1) In sustaining appellee’s demurrer to the plea in abatement; (2) in denying the application for removal to the federal court; (3) in overruling appellants’ demurrer to the complaint; (4) in overruling the motion to vacate the judgment; (5) in overruling the motion to modify the judgment.
The complaint, in brief, alleges that Isaac M. Darnell was a resident of, and maintained his domicile in, the city of Indianapolis, Marion county, Indiana, for each of the years from 1900 to 1907 inclusive, and that during each of said years he was the owner of shares of capital stock in a corporation called I. M. Darnell & Son Company, which was incorporated under the laws of the State of Tennessee, and which had exercised no corporate functions, owned no property and paid no taxes in this State during any of said years, and that the value of the stock owned by said Isaac M. Darnell for each of said years was as follows: 1900, $89,300; 1901, $89,300; 1902, $89,300; 1903, $49,300; 1904, $49,300; 1905, $49,300; 1906, $49,300; 1907, $49,300. That said Isaac M. Darnell unlawfully failed to list said property for taxation for each of said years; that on May 10, 1907, the auditor of Marion county duly placed said property on the tax duplicate of said county, and computed and extended taxes thereon for each of said years, and charged them to said Darnell as taxes on omitted property, to the aggregate amount of $10,568.59, which amount, with delinquent penalties of sixteen per cent thereon, remains upon said duplicate, owing by said Darnell, and is unpaid; that appellant Walter S. Darnell is the son of said Isaac M. Darnell, and for a number of years has managed the business of his father, who is eighty-four years of age; that on March 28,
This plea is clearly insufficient to abate the suit. It is, in effect, a categorical denial of the jurisdiction of the court, and of the truth of material averments of the complaint. The allegation that appellants are nonresidents is of no consequence, since that fact appears from the complaint, and jurisdiction over the cause was acquired in the way provided by statute in such cases. The regularity and sufficiency of the procedure to acquire jurisdiction are not challenged. The denial that the property assessed against Isaac M. Darnell was subject to taxation for the year 1907 goes to the merits, and if true would constitute a partial answer in bar rather than in abatement. The court did not err in sustaining appellee’s demurrer to this plea. Sloan v. Lowder (1899), 23 Ind. App. 118.
“The lien of the State for all taxes for state, county, school, road or township purposes, shall attach on all real estate, on the first day of March annually, and such lien shall be perpetual for all taxes due from the owner thereof, which have heretofore accrued or shall hereafter accrue, with interest and penalties in each case until payment; which lien shall in nowise be affected or destroyed by any
It is further provided that “all the property, both real and personal, situated in any county, shall be liable for the payment of all taxes, penalties, interest and costs charged to the owner thereof in such county,” etc. §10344 Burns 1908, Acts 1903 p. 49, §23.
In addition to listing and causing all tangible property to be assessed, a domestic corporation, by its president or other proper accounting officer, is required to furnish a
It is provided by §10234 Burns 1908, Acts 1903 p. 49, that this statement shall be placed before the county board of review, and in all cases where the value of the capital stock exceeds that of the tangible property listed for taxation, such capital stock shall be subject to taxation upon such excess of value.
A blank form of the schedule for assessing individuals is prescribed by §10202 Burns 1908, Acts 1903 p. 49, §32, and the eighth item under the head of chattels is: “All shares of stock in any corporation formed outside of this State; and also all shares of stock in any corporation formed in this State and conducting its business outside of this State.
Appellants’ learned counsel concede that under the decisions of this court shares of stock in a corporation are property separate and distinct from the property of the corporation itself, and that they are the property of the owner and holder of them, and subject to taxation under §10142 supra, unless exempted by some other provision. They contend however that our tax laws wrongfully discriminate in favor of domestic stocks as against shares in a
Appellants cite in support of their contention the case of I. M. Darnell & Son Co. v. City of Memphis (1908), 208 U. S. 113, 28 Sup. Ct. 247, 52 L. Ed. 413. The court in that decision again declared that property which has moved in the channels of interstate commerce, but which is then at rest in a state, and has become commingled with the mass of property therein, may be taxed by such state without thereby imposing a direct burden upon interstate commerce, provided there is no discrimination against such property, whereby a burden of taxation is imposed on it greater than that levied upon domestic property of like nature. The conclusion was that the disputed tax involved in that ease was a direct burden upon interstate commerce, for the reason that the law of Tennessee was discriminatory and imposed a tax upon logs and lumber when brought into that state, which were the products of the soil of other states, and in express terms exempted like property produced from the soil of Tennessee.