164 Ind. 609 | Ind. | 1905
Appellee instituted this action in the lower court perpetually to enjoin appellant, the treasurer of Jasper county, from enforcing the collection of certain taxes arising out of assessments made by the county auditor on certain personal property, consisting of money, notes secured by mortgage, and other' credits belonging to appellee, which, as claimed by the auditor, he had omitted to list and return for taxation. A change from the regular judge was taken, and a special judge was called who tried the cause. The court upon request made a special finding of facts and stated conclusions of law thereon adversely to appellant. Over the latter’s motion for a new trial, assigning as reasons therefor, “(1) that the findings of the court are contrary to law; (2) that the findings of the court are not supported by sufficient evidence; (3) that the findings of the court are contrary both to law and evidence” — the court rendered judgment whereby it perpetually enjoined the defendant from collecting the taxes in controversy, and ordered and decreed that the same be canceled.
Erom this judgment appellant appeals, and assigns as errors, “(1) that the court erred in overruling the motion for a new trial; (2) that the court erred separately and sev
Under the first assignment the only claim or contention urged for a reversal of the judgment is that the findings of the court are not supported by sufficient evidence, and that they are contrary to lhw. The evidence, in the main, upon which the cause was tried and determined, consists of that which was given orally before the court by witnesses who testified in behalf of each party. All of the evidence has been incorporated into a bill of exceptions, and by this method has been properly certified to this court.
The complaint consists of ten ^paragraphs. The first paragraph embraced each of the years for which the taxes in question were sought to be enjoined, viz., 1892 to 1897, 1899, 1900. By it the official character of appellant is shown, and it is further disclosed therein that appellee was, at the commencement of the action, and had been continuously from the year 1890, a resident taxpayer of Rensselaer, Marion township, Jasper county, Indiana.
It is further shown that the auditor of said county on October 30, 1902, entered of record in his office a finding to the effect that for each of said years from 1892 to 1897, 1899, 1900, the plaintiff had omitted from his tax schedule personal property of a certain value, and that said auditor assessed and extended the tax on said property on the proper tax duplicate of said county, giving the particular amount of taxes so extended or assessed for each year. It is averred that the assessments were described in the findings made by the auditor as being on moneys, mortgage notes, money loaned and credits. It is further charged that such assessments were all made solely and exclusively on money loaned and on notes secured by mortgage, and that the said several findings of the auditor were false; that appellee had in fact listed and returned for each of said years all of his personal property; and that the same had
It is further alleged that no item of personal property was omitted by the plaintiff from his tax schedule for any one of the years mentioned; that a valuation had been made on each item of his property by the proper township assessor at the time it was listed by the plaintiff. The valuations fixed by the auditor, it is charged, were simply valuations of property which had been returned by the plaintiff and valued for taxation by said assessor, and were not valuations or assessments of omitted property. It is alleged that all of the taxes levied and due upon the personal property of the plaintiff for each of the said years have been paid, and that he owes no taxes whatever, and that said auditor has no right and power to revalue and reassess said property and that his act in the assessment thereof is void. It is alleged that the defendant, as the treasurer of the county of Jasper, will collect said taxes so levied and assess as aforesaid by a levy upon and the sale of the personal property of the plaintiff, unless restrained and enjoined by the court.
The second paragraph of the complaint relates to each of the years named in the first paragraph, and proceeds upon the theory, and in effect charges, that the auditor of said county, instead of placing any omitted property belonging to the plaintiff upon the tax duplicate, had merely increased the value placed by the proper township assessor on certain property — namely mortgage notes, etc. — listed and returned by appellee for taxation for each of said years. It is averred that no specific note or notes were omitted to be returned by appellee to said assessor for any of the years in question, and that the taxes placed on the tax duplicate by the said auditor on October 30, 1902, were simply the result of a mere calculation on the fixed value of all of plaintiff’s mortgage notes as a whole, each and all of which
The other paragraphs of the complaint allege in the main facts similar to those in the first and second paragraphs of the complaint, and each proceeds upon the theory that the auditor had revalued and increased the valuation of appellee’s property listed by him for taxation in each of the said years over and above the value placed thereon by the township assessor at the time it was listed and returned for taxation.
Appellant answered the complaint by a general denial. By the special findings it is disclosed that the plaintiff from the year 1891 to 1901 has been a resident of the city of Rensselaer, Marion township, Jasper county, Indiana. The court further finds that for the year 1892, and each succeeding year thereafter until the year 1900, inclusive, the plaintiff listed and returned all of his personal property for taxation to the assessor of said township, and prior to the beginning of this action he had paid the taxes assessed against him for his property so returned for each of the aforesaid years. During the aforesaid years plaintiff was engaged in buying and selling swamp and wild lands in said county, the sales of which were made on long time
During the years 1895 and 1896 the plaintiff was in partnership with James L. Babcock, in the live-stock business in Union township, in said county, which township was the situs of said firm, and in said township said Babcock listed the personal property belonging to the said firm for taxation. The plaintiff was also a, partner of the firm of Thompson & Bros., the personal property of which firm was assessed in said city of Eensselaer, and all of the said firm’s taxes for each of the years from 1892 to 1900, inclusive, have been paid.
It is found that all of the taxes mentioned in the complaint, and claimed by the defendant to be due from plaintiff, were assessed on October 30, 1902, on property claimed to have been omitted as the individual property of the plaintiff, and not as the property of either of the said firms or partnerships.
It further appears by the findings that the board of commissioners of said county employed Fleener & Oarnahan as “ferrets” to discover property omitted from taxation, and on March 17, 1902, one James B. Workman, acting for them, caused a notice to be issued to the plaintiff in the name of the county assessor, claiming therein that the plaintiff owned “moneys, loans and credits” which had not been listed and assessed for taxation, the separate amount for each of the years being stated in the findings. The plaintiff appeared before the said Workman, and explained to him what was the face value of the unpaid notes on the 1st of April of each of the said years in question.
On October 30, 1902, the county auditor, by a written finding made by him, returned against appellee' for taxation the following amounts as moneys, mortgage notes, moneys
The court finds that for the years 1892 to 1900, inclusive, the plaintiff each year listed and returned for taxation all moneys on hand and on deposit, and moneys loaned by him, and credits owned and held by him, and that the same were listed and valued for taxation by the township assessor. It is shown by the special findings that the face value of the plaintiff’s notes for the year 1892 was $16,583, and the township assessor had fixed the value at $12,000 as of April 1 of said year. All of the plaintiff’s mortgage notes owned by him on April 1, 1892, were duly listed for taxation, and were valued and reported by the township assessor at $12,000.
It is further found that no mortgage or other notes owned or held by plaintiff on the 1st day of April of any of the aforesaid years were omitted to be listed and returned for taxation. For each of said years all moneys on hand or on deposit, and all money loaned and credits owned by the plaintiff, were listed by him and returned for taxation, and were valued by the proper township assessor. It is shown that for the year 1893 the face value of all of plaintiff’s mortgage notes was $15,760, and that the same were valued by the township assessor at $13,000, as of April 1, 1893. For the year 1894 the face value of all of plaintiff’s mortgage notes as a body was $18,738; these notes were valued by the township assessor for taxation at $9,250, as of April
1. It will be observed that the reasons assigned by appellant in his motion for a new trial were (1) “that the findings of the court are contrary to law;” (2) that the findings of the court are not supported .by sufficient evidence. It is contended by appellee’s counsel that these grounds present no question for a review of the evidence, because the word “decision” is not employed. It is time that the grounds for a new trial, as provided by subdivision six of §568 Burns 1901, §559 R. S. 1881, are “that the verdict or decision is not sustained by sufficient evidence, or is contrary to law.” It, however, has been held by this court that the word “decision” is employed in the above provision of the statute in the sense of finding when the cause has been tried by the court. Weaver v. Apple (1897), 147 Ind. 304, and cases there cited; Gates v. Baltimore, etc., R. Co. (1900), 154 Ind. 338; Hubbs v. State, ex rel. (1898), 20 Ind. App. 181. In Young v. Berger (1892),
2. Appellant’s counsel, in their argument, invote the benefit of the provisions of section eight of an act of the legislature “concerning proceedings in civil procedure,” approved March 9, 1903 (Acts 1903, p. 338). They insist that, under the provisions of this section, this court in this appeal is required carefully to consider and weigh the evidence given before the trial court as the same has been incorporated into a bill of exceptions and properly certified. Section eight of the above act reads as follows: “In all cases not now or hereafter triable by a jury, the Supreme and Appellate Courts shall, if required by the assignment of errors, carefully consider and weigh the evidence and admissions heard on the trial when the same is made to appear by a bill of exceptions setting forth all the evidence given in the cause, and if on such appeal it appears from all the evidence and admissions that the judgment appealed from is not fairly supported by, or is clearly against the weight of the evidence, it shall be the duty of such court to award judgment according to the clear weight of the evidence, and affirm the judgment or return said cause to the trial court with instructions to modify the judgment or grant a new trial; or to enter such other judgment or decree as to such court of appeal may seem right and proper upon the whole case.” As to whether the statute is intended to embrace all special statutory proceedings wherein a trial by jury is expressly or impliedly denied it is not necessary now to determine. That it does, however, apply to suits or actions which were formerly of exclusive equitable jurisdiction, as is the case at bar, wherein the right to a jury trial is denied by §412 Burns 1901, §409 R. S. 1881, is evident.
3. We are confronted at this point with the insistence of appellee’s learned counsel that the provisions of the act
4. The evidence in this case, in the main, consists of that given before the court viva voce by witnesses who testified in behalf of the respective parties. The practice formerly in chancery courts was peculiar in the method of taking evidence. The proof in a suit in these courts was made by means of depositions, and was not given or made by means of witnesses testifying orally at the trial. But under our civil code, which has brought about a fusion of legal and equitable procedure, there is no distinction, in respect to the method of making proof, between a case at law and one which formerly was of exclusive equitable jurisdiction. If the method of making proof in cases tried in a court of chancery were the only one now authorized in such cases, we would not be subjected to much difficulty in weighing the evidence on appeal in a cause of equitable jurisdiction, for it is manifest that where the evidence given in a case in the lower court is wholly documentary, in such a case on appeal this court might be said to be in as good a position to determine the weight of the evidence as was the trial court; but, where the evidence is in whole or in part parol or oral, we would, to say the least, be confronted with quite a difficult proposition if required to weigh the evidence upon the face of the record and decide the question of its preponderance. It has been universally asserted by this court as a reason for the rule which controls it in reviewing the evidence on appeal that it is not in the same position to determine the credibility of the witnesses as the trial court.
The disadvantages under which this court is placed for deciding questions of fact are so obvious that merely suggesting them will appear to be sufficient to disclose the impracticability of any rule or law which exacts of the court the duty of deciding questions of fact on appeal which depend on parol or oral evidence.
The statute must be given a reasonable construction, and no such interpretation should be placed thereon as will make
While it is true that §4 of article 7 of the State’s Constitution provides that: “The Supreme Court shall have jurisdiction coextensive with the limits of the State in appeals and writs of error, under such regulations and restrictions as may be prescribed by law. It shall also have such original jurisdiction as the general assembly may confer,” nevertheless this provision was not intended to authorize the legislature to clothe the Supreme Court, in cases appealed to that tribunal from the lower court, with both appellate and original jurisdiction. The provision in question does not contemplate any such dual jurisdiction in the same case. That the legislature may, under this provision, invest the Supreme Court with original jurisdiction in certain cases is manifest, but such original jurisdiction would necessarily extend to and include the entire cause.
In Elliott, App. Proc., §28, it is said: “As the Supreme Court is essentially an appellate tribunal its .powers are necessarily such as are inherent, in such a tribunal or are
In 1860 the legislature of Wisconsin passed an act which provided that any question of fact decided upon trials by the court, or by a referee, might be reviewed by the supreme court when exceptions to the findings of fact had been duly taken by either party and returned. This act came before the supreme court in the cases of Snyder v. Wright (1861), 13 Wis. 689; Fisher v. Farmers Loan, etc., Co. (1866), 21 Wis. 74; Garbutt v. Bank, etc. (1867), 22 Wis. 384; Swift v. Agnes (1873), 33 Wis. 228; and Paige v. McMillan (1877), 41 Wis. 337. That court in these cases apparently was of the opinion that it became its duty under the statute to weigh the evidence and to determine, to an extent, at least, questions of fact.
In Snyder v. Wright, supra, the supreme court severely criticised the statute, and doubted the wisdom and propriety of its passage. Subsequently this act, in 1893, was amended to provide as follows: “All questions of law or fact presented by the record upon such appeal or writ of error, shall be reviewed by the supreme court, and it shall be the duty of the supreme court to examine and review
In the appeal of Klein v. Valerius (1894), 87 Wis. 54, 22 L. R. A. 609, this provision of the statute was held to be unconstitutional; the court asserting that so far as it attempted to give it original jurisdiction in cases in which, under the constitution, it only had appellate jurisdiction, the act was null and void.
The legislatures of North and South Dakota appear to have copied or borrowed the Wisconsin statute as enacted in 1860, and incorporated it into the laws of each of these respective states, by providing that “Any questions of fact or of law, decided upon trials by the court or by referee, may be reviewed when the exceptions to the findings of fact have been duly taken by either party and returned.” This act was reviewed and construed by the supreme court of North Dakota in the appeal of Jasper v. Hazen (1894), 4 N. Dak. 1, and by the supreme court of South Dakota in Randall v. Burk Tp. (1893), 4 S. Dak. 337.
In Jasper v. Hazen, supra, the court, in passing upon the provisions of the statute, said: “That the statute ingrafted a change upon the former practice' is certain. * * * It did not intend that this court should take up the parol evidence as preserved in the hill of exceptions, and pass upon it without any reference to the decision below. Rather, it intended — and such, we think, is the effect of the Wisconsin decisions — that, when a finding of fact made by the trial court was brought into this court for review upon proper exceptions, it should come like a legal conclusion, with all the presumptions in favor of its correctness, and with the burden resting upon the party alleging error of demonstrating the existence of such error. He must, be able "to show this court that such finding is against the
The supreme court of South Dakota, in Randall v. Burk Tp., supra, in placing a construction on the same statute, held that the rule laid down by Justice Cole in Fisher v. Farmers Loan, etc., Co., supra, to the effect that the court was required “to decide questions of fact according to the weight of the evidénce,” was probably too broad and not strictly correct. The court further said in that case: “This court will not decide the case upon tire weight of evidence, as a trial court may do, but will only reverse the decision of the trial court where there is a clear preponderance of evidence against the decision of the court below. The pre
5. These decisions are certainly influential upon the question of the construction which should be placed on the statute here involved. A reasonable interpretation of the act requires us to hold that the party who appeals and seeks to avail himself of its provisions will have the laboring oar, and the burden will rest upon him clearly to establish that the judgment below is not fairly supported by the evidence, or that it is clearly against the weight of the testimony. The judgment will be presumed to be correct, and will not be disturbed unless it be made to appear to our satisfaction that it is not fairly sustained by the evidence, or is clearly against the weight thereof. Pollock v. Carolina, etc., Loan Assn. (1897), 51 S. C. 420, 29 S. E. 77, 64 Am. St. 683; Land Mortgage Co. v. Faulkner (1895), 45 S. C. 503, 23 S. E. 516.
In the case first cited the supreme court of South Carolina, in considering a provision in the state’s constitution which provides “that findings of fact as well as of law may be reviewed on appeal,” quoted with approval the following from Land Mortgage Co. v. Faulkner, supra: “When a question of fact has been determined by an intelligent, disinterested, and experienced circuit judge, that certainly affords a reason for believing that his conclusion is correct; and it is incumbent upon the appellant to assume the burden of showing error therein, and unless he sustains that burden, the conclusion of the circuit judge should stand.”
6. In passing upon questions of fact, under the act in question, which depend upon oral evidence given before the trial court, we must take into consideration, not only the evidence in the record, hut also the means and tests
1. A party on appeal who seeks the benefit of the provisions of this act must take it subject to the rules of this court. The court’s power to prescribe rules regulating the conduct of its business is inherent in the tribunal. It does not depend on any authority granted by the legislature. While the latter may prescribe rules of procedure and pleading by which both courts and the parties in a cause are bound, nevertheless it can not, under the Constitution, encroach on judicial domain by prescribing the manner and mode in which the courts shall discharge their judicial duties. The legislature has no more right to break down the rules prescribed by this court for conducting its official .business than the court has to prescribe the mode and manner in which the legislature shall perform its legislative
In Smythe v. Boswell, supra, this court, speaking by Elliott, J., as its organ, said: “It is true that the judiciary is an independent department of government, exclusively invested by the Constitution with one element of sovereignty, and that this court receives its essential and inherent powers, rights and jurisdiction from the Constitution and not from the legislature.”
We have sometimes thought that perhaps there was some misapprehension upon-the part of the legislature in the enactment of statutes in regard to judicial independence; or, in other words, in respect to the encroachment by the legislative department upon the domain of the judiciary. A very instructive paper on judicial independence, prepared by Judge Henry B. Brown, now of the Supreme Court of the United States, will be found in volume 12, page 265, of the American Bar Association of 1889.
Whether the statute in question can be said to be antagonistic in any respect to our Constitution, we do not determine, as that question has not been raised in this appeal.
Having placed a construction upon the statute ‘in question, we next proceed to an examination of the evidence in the record. It appears that the board of commissioners of Jasper county procured an investigation to be made by experts in order to discover whether any of the taxpayers of said county had omitted to list and return property subject to taxation. As a result of this investigation, information was lodged with the county assessor that appellee, for a series of years, had omitted to list and return all of his property. Thereupon that official gave appellee a written notice to appear at a time and place fixed, and show cause why he should not be assessed upon omitted property.
8. His theory, under the facts alleged in the complaint, and likewise under the evidence, is that the taxes in question were not assessed by the auditor upon any omitted property, but are merely the result of a revaluation made by that officer over and above the value fixed by the township assessor upon the mortgage notes and other credits which had been duly listed and returned in each of the aforesaid years. His contention is that he listed and returned for each of the years in question all of his property, including moneys, mortgage notes and other credits, subject to taxation. Certainly the auditor, under the law, was not authorized in the proceedings in question’ to change or alter the valuation fixed by the proper township assessor on property listed and returned by appellee. That official’s duty, under the statute, is confined to property subject to taxation which has been omitted to be listed and returned by the taxpayer. Reynolds v. Bowen (1894), 138 Ind. 434; Florer v. Sherwood (1891), 128 Ind. 495; Woll v. Thomas (1891), 1 Ind. App. 232.
9. It must be said, however, that in this case all pre
10. In appellee’s tax schedule for the year 1897, after the words “All notes secured by mortgage,” appear, in his own handwriting, the following figures: “$16,000.” Under the caption “Valuation by Party,” “$13,000;” “Valuation by Assessor,” “$13,000.” The assessor apparently having adopted appellee’s own valuation for that year. The special finding discloses, and there is evidence to prove, that during the years 1895 and 1896 appellee was in partnership with one James L. Babcock, engaged in the business of farming, and buying and selling live stock in Union township, Jasper county, Indiana, that the business was transacted and carried on in the firm name of Thompson & Babcock. Appellant’s counsel contend that the undisputed evidence in the case established that appellee hid in bank on the 1st day of April, 1895, the sum of $1,731, which was deposited in the name of said firm. Appellee claimed in his evidence that this money belonged to the firm, and gave this as an excuse for not listing it. • It is claimed by appellant that there is no evidence in the record to show that this money was ever listed and returned for taxation by said firm. The contention is advanced that the evidence is insufficient to show in a legal sense that the relation existing between appellee and Babcock was that of a partnership, and therefore it is insisted that the money in question must be considered ’as that of appellee, which
The fact as to whether appellee listed and returned for taxation ail of his mortgage notes, moneys and other credits for each of the years other than 1897 depends, to an extent, upon conflicting evidence. Therefore, under the interpretation which we have placed upon the statute in controversy, we will not undertake to reconcile the conflict or weigh such evidence. Consequently,, in view of our conclusion, we
After a full consideration, we are of the opinion that the finding of the trial court that appellee listed and-returned all of his mortgage notes in 1897 is not fairly supported by the evidence, and to this extent, at least, he has failed to overthrow the assessment of the county auditor.
The judgment for this reason is therefore reversed, and the cause remanded, with instructions to the lower court to grant appellant a new trial.