183 Ind. 251 | Ind. | 1915
— A provision of the tax law of 1891 as. it was amended in 1897, requires a trustee, among other fiduciaries named, to pay the taxes due .upon the property of the cestui que trust. And the statute further provides that in case he shall neglect to pay any installment when due, when there is money enough on hand to pay the same, the county treas
Under this statute appellant as county treasurer of Jay County presented to the lower court his statement in writing to require the trustee of the Citizens Gas and Oil Mining Company, a domestic private corporation, defunct, except for closing up its affairs by a trustee by reason of the expiration of its chartered life, to pay taxes on a money judgment recovered for it by such trustee. Muncie, etc,., Traction Co. v. Citizens Gas, etc., Co. (1913), 179 Ind. 322, 100 N. E. 65. At the time appellant instituted the proceeding, the judgment had been paid and the money was in the hands of the clerk of the circuit court and for this reason the clerk was made a party. The clerk successfully demurred to the statement or complaint against him. The issues formed between appellant and appellee by various pleadings were tried by the court which upon request of the parties found the facts specially and stated conclusions of law thereon on which it was adjudged that the tax which appellant sought in the proceeding to collect was illegal and void, that appellant take nothing and appellee recover costs. On appeal from this judgment, numerous alleged errors are assigned and urged, based on rulings on the pleadings, the conclusions of law from the facts specially found and the action of the court in overruling the motion for a new trial. Constitutional questions which give jurisdiction of the appeal to this court are raised, but the conclusion which must he reached makes their consideration unnecessary.
The facts found by the court sustain appellee’s answer and are, in substance material to this question, as follows: The Citizens Gas and Oil Mining Company was a domestic private corporation organized February 18,1887. Its articles of incorporation limited its corporate life to twenty years. In 1905 it brought an action against the Muncie and Portland Traction Company to recover damages for a trespass on its property. The corporate term of life of the citizens company ended February 18, 1907, with this action pending and undisposed of, but by force of the statute it was continued as a body corporate for three years more or until February 18, 1910, for the purpose of prosecuting and defending suits to which it was a party, and to enable it to settle, dispose of and convey its property, and to divide its capital stock but not to continue the business for which it was organized. §4050 Burns 1914, §3006 R. S. 1881; Muncie, etc., Traction Co. v. Citizens Gas, etc., Co., supra, February 13, 1910, the Citizens Gas and Oil Mining Company sold and disposed of all its property except the chose in action against the traction company which it expressly retained. February 2, 1910, at the suit of stockholders, one Simmons was appointed to prosecute this action for the defunct corporation and finally to settle its business and close up its affairs as authorized by §§4062-4067 Burns 1914, §§3012-3017 R. S. 1881. He qualified and was substituted as plaintiff in the action against the traction company in place of the defunct corporation. Muncie, etc., Traction Co. v. Citizens Gas, etc,, Co., supra. On June 23, 1910, a judgment was rendered for the plaintiff in that
Prom these facts the court concluded as a matter of law that the taxes as assessed and placed on the tax duplicate were illegal and void, that appellant was entitled to take nothing and that appellee was entitled to recover costs. .
As the assessment by the auditor was illegal and void, appellant’s action was without foundation and we do not feel called to decide questions on the taxability of the judgment for the three years from the time of its rendition until it became final in this court and appellee’s right to offset certain debts against it for taxing purposes. Judgment affirmed.
Note. — Reported in 108 N. 15. 946. As to personal liability for taxes and remedies for its enforcement, see 42 Am. St. 655. See, also, under (1) 37 Cyc. 1045, 1019; (2) 36 Cyc. 1073.