30 Ind. 133 | Ind. | 1868
It is contended by the appellant that the Circuit Court erred in overruling the demurrer to the second paragraph of the answer. The first objection urged to it is, that it assumes to answer both paragraphs of the complaint, when, if the facts alleged constitute an answer to any part of the complaint, they can only be so applied to the first paragraph, and do not present any ground of defense to the second. But the paragraph, as we understand it, is only pleaded to the first paragraph of the complaint. The language used, in referring to the paragraph intended to be answered, is not as explicit as it might be, but we think it is sufficient to exclude the inference that it was intended to apply to the second paragraph of the complaint. Is it a good answer to the first paragraph of the complaint?
The 23d section of the act for the incorporation of cities (Acts 1867, p. 41) makes it the duty of the city clerk, annually, between the first Monday of J une and the fifteenth of November, to make out a duplicate of the taxes assessed therein, and requires him to “deliver the same, with a war
The duplicate and warraxxt constitute the tx'easux-ox-’s authority for enforcing the payment of taxes by seizure axxd sale of property. Taken togetkei’, they constitute a writ in the nature of an execution, and confer upon the treasurer the same power to seize and sell pex’sonal property that is conferred by an execution upon a sheriff; but the duplicate alone is not sufficient. It does not justify a seizure of property for taxes, unless it is accompaxxied by a warrant as required by the statute. As the paragraph failed to show that fact, it was bad, and the demurrer to it should have been sustained.
The second error assigned is upon the action of the court in over-ruling the appellant’s demurrers to the third and fourth pax-agi-aphs of the answer-, which were pleaded to the second paragraph of the complaint. The material question presented by these answers is, had thetx-easux-er authority, by virtue of his office as such, and having in his hands the tax duplicate for the year 1865, to correct the assessment of the plaintiff’s property by adding thereto, or by assessixxg property belonging to him which he had failed to give to the assessor for the year 1865? The only provision of the statute, referred to by counsel, or that we have beexx able to find, bearing on the question, is the 49th section of the act
The assessment roll, when returned by the assessor, is presumed to be correct, and to contain a proper assessment of all property owned by the persons listed subject to taxation. Under the act of 1852, the common council and assessor constituted a board of equalization (to which the act of 1867 has added the clerk), with power to equalize the assessments and valuations made by the assessor, as right and justice may inquire. This duty, however, is required to be performed before the duplicate is made out and delivered to the treasurer. The principal duty of the treasurer is to collect the taxes as he finds them upon the duplicate, and, however erroneous or imperfect the assessments may be, he has no power over them other than that specially conferred by law. The section of the act above referred to does not confer on him the power to alter the assessments made by the assessor, or to add thereto property belonging to a person assessed, but which was omitted in the assessment. It simply confers on the treasurer the power to assess persons “ whom the assessor failed to list.” We think, therefore, that the additional assessment made by the defendant in 1865 against the appellant was without
Certain instructions given by the court to the jury are also complained of. They contain, substantially, the same errors as in the rulings on the demurrers to the answer, and, as the case is reversed on the pleadings, a further notice of them is rendered unnecessary.
The judgment is reversed, with costs, and the cause remanded, with instructions to the Circuit Court to sustain the demurrers to the second, third, and fourth paragraphs of the answer, with leave to amend.