Strader v. Manville

Ray, J.

The only points made in either of the above cases not already decided in Whitney v. Ragsdale, Treasurer, at the present term, ante, p. 107, will be stated as they are ruled.

The counsel have- applied one brief to' the eases, and one ■opinion will therefore be pronounced.

First, the banks were organized under the act of 1868, which did not in terms authorize state taxation. But the act of 1864 repealed the former act, as was provided in the act of 1863 might be done, and continued the existence of the banks already organized under the act of 1868. 2 Brightly’s Digest, 72, sec. 65.

Second, the assessment was placed upon the tax duplicate by the auditor after he had delivered it to the treasurer. It was made the duty of the auditor, by the act of 1867, to place the tax upon the duplicate, and the act does not in terms limit the time within which this may be done. Under the general law, it is made the duty of the treasurer to add omitted names, and we have held that where this duty *113 was performed by the auditor and acted upon by the treasurer, it was sufficient. Rieman v. Shepard, Treasurer, 27 Ind. 288 . This property being declared taxable, under the general law the treasurer should have inserted it if it were omitted by the auditor. Here it is not denied that the amount is correct.

C. E. Walker, W. S. Roberts, T. A: Hendrick, O. B. Hord, and A. W. Hendricks, for appellants. H. W. Harrington and. C. A. Korbly, for appellee. C. E. Walker, W. S. Roberts, T. A. Hendricks, O. B. Hord, and A. W. Hendricks, for, appellants. H. W. Harrington and G. A. Korbly, for appellee.

Third, the names of stockholders were not returned’ by the bank officer, and the auditor did not, as he was empowered, summon them before him and from them obtain such a statement. Still, as the correctness of the assessment, in-number of shares and amount of tax, is not questioned, a court will not grant the use of an extraordinary remedy issued by a court of equity, to aid the parties in avoiding-an amount equitably and, in our view, legally due. The-third section of the act of 1867, p. 216, authorizes the auditor to make such investigations at the expense of such bank as may enable him to obtain the information required. This does not limit him to an examination of the officers - of the bank.

The objection is made that the owners of stock-would,, under this, be liable to taxation at the point where the bank' is located and under the general law again at their.places of 1 residence. "When the general law was passed,.tliisiclass. of stock was not taxed, and is now only liable to taxation at', the point where the bank is located.

The judgment in the case of Strader et al. v. Manville, Treasurer, is affirmed, with costs.

The judgment in Law et al. v. Manville, Treasurer, is. affirmed, with costs.

In Monroe, Treasurer, by Manville, his successor in office, *114 v. Strader et al., judgment was taken by appellees by default. The error assigned in this court is, that, the complaint does not state facts sufficient to constitute a cause of action. It is objected, that after default, a motion must be made to set the judgment aside before the appeal can be prosecuted. That is true where some action by the court below might have been had to avoid some technical objection, as to an imperfect return of service, or the like. But the rule does not have a general application. Abdil v. Abdil, 26 Ind. 287 ; Cochnower v. Cochnower, 27 Ind. 253 . If ;a motion to set aside this default were granted, still the appellant could not be required to raise this question by demurrer, and his failure to do so would not waive the objection. The complaint in this case is subject to the same objections as in Whitney et al. v. Ragsdale, supra.

H. W. Harrington and C. A. Korbly, for appellant. C. E. Walker, for appellees.

The cause is reversed and remanded, with directions to ■the court below to set aside all proceedings subsequent to 'the complaint.