Wise v. Eastham

| Ind. | Nov 15, 1868

Elliott, J.

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 warrant under tlie corporate seal of said city, attached thereto, to the treasurer of said city, directing him that of the goods and chattels of all and every person named in said duplicate, and of all persons whose names may be added thereto by him, he shall cause to be made, by distress and sale if necessary, the amount of tax charged against each of said persons named in said duplicate,” &c. It is averred in the second paragraph of the answer, that the defendant was the city treasurer, and as such had in his possession the tax duplicate upon which there was assessed against the plaintiff certain taxes, &c., in the collection of which he did the acts complained of; but it contains no averment that the duplicate was accompanied by the wari’ant required by the statute.

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 for the incorporation of cities, &c., 1 G-. & TI. 229, which provides that “the treasurer shall require of each and every person whom the assessor failed to list, a statement of the taxable property, and the value thereof, which shall be given under the same regulations as if furnished the assessor; and for that purpose the treasurer is authorized to administer the necessary oath or affirmation. If such person fail to furnish such statement, the treasurer shall value the same as the assessor is required to do in like cases.” But this does not seem to cover the case. Wise, it appears, was regularly assessed by the city assessor, and ’ was charged on the duplicate for 1865 with taxes levied on personal property. The assessor, therefore, did not fail to list him; but it is alleged that Wise failed to ■> give the assessoi’, when listed, a list of all the personal property owned by him.

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 authority of law, and that under the second paragraph of the complaint, the appellant was entitled to recover the damages resulting to him therefrom, Neither the third nor fourth paragraph of the answer presents a valid defense to the second paragraph of the complaint, and the court erred in overruling the demurrers to them.

F. W. Viehe, for appellant. JSf. F. Malott and T. B. Cobb, for appellee.

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.