163 Ind. App. 551 | Ind. Ct. App. | 1975
Defendants-appellants Griffin, et al. appeal from a judgment in favor of plaintiff-appellee Boonville Savings Association, which permanently restrained and enjoined Griffin (Auditor of Warrick County) from executing a tax deed to appellants Madden and Craig. The following issues are presented for review:
1. Whether the trial court erred in overruling defendants’ Tr. 12(B) (6) motion to dismiss.
2. Whether the trial court erred in overruling defendants’ motion to dismiss for failure to prosecute.
3. Whether the trial court, upon determination that the original assessment was valid, can allow the payment of the redemption price by the owner to the tax sale purchaser if no tax deed has been issued, even though more than two (2) years have elapsed since the tax sale.
4. Whether a party may initially raise on appeal the validity of the calculation of the amount of the redemption price allowed by the trial court and tendered by the redeeming party.
The record reveals that a parcel of land owned by plaintiff was, pursuant to and in compliance with applicable statutory guide lines, duly assessed a pro rata share of the cost for con
Thereafter, on June 14, 1967, plaintiff was notified that the land had been sold for delinquent taxes, and was further informed of the intention of the Auditor of Warrick County to issue a tax deed to the purchasers on August 9, 1967. Thereupon, plaintiff initiated this action by filing on August 4, 1967, a complaint seeking inter alia to enjoin the Auditor of Warrick County from executing a tax deed to Madden and Craig. At the conclusion of trial, on April 19, 1973, plaintiff filed its offer of redemption and tendered payment. Thereafter, on August 20, 1973, judgment was entered for plaintiff permanently restraining and enjoining the Auditor of War-rick County from executing a tax deed or other instrument Avhich might purport to convey interest or title in the subject realty to Madden and Craig or any persons holding by or through them. The judgment also granted plaintiff thirty (30) days in which to fully redeem the real estate.
I.
On March 2, 1970, defendants, pursuant to Ind. Rules of Procedure, Trial Rule 12(B) (6), filed a motion to dismiss alleging that plaintiff’s complaint failed to state a claim upon which relief could be granted. Defendants now argue that it was error to overrule that motion for the reason that no tender of funds for the redemption of the real estate was made by plaintiff when the complaint was filed. Thus, the specific question presented is whether plaintiff was required to tender the redemption price as a condition precedent to challenging the legality of the original assessment and subsequent tax sale.
Inasmuch as plaintiff’s complaint challenged the legality of the entire assessment, it was not necessary that payment be tendered as a condition precedent. Nor was it necessary that plaintiff specifically plead that payment was tendered in order to avoid dismissal via defendants’ TR. 12(B)(6) motion. Accordingly, we find no error under this issue.
II.
On October 10, 1972, more than five years after the filing of plaintiff’s complaint, defendants, pursuant to TR. 41(E), filed a motion to dismiss for failure to prosecute. As required by that rule, the trial judge set a hearing on defendants’ motion. On the day of the hearing, October 24, 1972, the hearing was dismissed by agreement and trial set for January 25, 1973.
Since defendants agreed to the dismissal of the hearing on their motion to dismiss for failure to prosecute and subsequently proceeded to trial without objection, they must be deemed to have waived their opportunity to assert error, if any, in the overruling of their motion.
III.
Thirdly, defendants contend that since more than two years had passed since the tax sale, it was reversible error to permit plaintiff to redeem. They argue that by operation of applicable statutes, unless the property had been redeemed by plaintiff before August 9, 1967, defendants Madden and Craig were entitled to a tax deed, and the failure of the trial court to so find is error. We cannot agree.
IV.
Finally, defendants assert that the amount of money due them for redemption of plaintiff’s real estate was incorrectly determined by the trial court. We note however, that this issue is raised for the first time on appeal. Defendants, not having objected at trial, are now precluded from attacking the trial court’s determination of the amount due for redemption.
Appellants having failed to demonstrate reversible error, the judgment is affirmed.
Affirmed.