Gallup v. Schmidt

This is a writ of error to a judgment of the circuit court of Marion county, state of Indiana, entered in pursuance of a final judgment of the supreme court of that state, in a case wherein Edward P. Gallup, executor of William P. Gallup, deceased, was plaintiff in error, and William H. Schmidt, treasurer of said Marion county, was defendant in error.

The main facts in the case were thus stated in the opinion of the supreme court (154 Ind. 196, 56 N. E. 443):

'William P. Gallup, having for thirty-one years been a resident therein, died, testate, in the city of Indianapolis, Marion county, in December, 1893, the owner and in possession of a large personal estate in said county. His will was duly admitted to probate in the Marion circuit court, and Edward P. Gallup, a resident of the state of New Hampshire, the principal and residuary legatee, was qualified as executor in January, 1894, and March 5, 1894, filed an inventory showing a personal estate of $492,628.26. Subsequently, in the spring of 1894, said executor listed to the assessor for taxation for the year 1894 personal property of the estate aggregating $383,906.46. January 15, 1895, Taggart, then auditor of Marion county, discovered, on what he believed to be credible information, that a large amount of personal property belonging to and in possession of said decedent had not been listed for taxation for the years 1881 to 1893 both inclusive; and upon that day, acting under § 8560, Burns's Rev. Stat. 1894, caused to be served by the sheriff upon Edward P. Gallup, as executor, who was at the time in Indianapolis, engaged in the settlement of said estate, notice in writing of his intention to add such omitted property to the tax duplicate, and requiring such executor to appear before him within five days to show cause, if any, why such property should not be so added. The notice specified the property to be added as county, township, town, and other bonds, notes, mortgages, claims, dues, demands, and other credits, money on hand and on deposit.

'January 19, 1895, the executor appeared before the auditor, and filed written objections to the authority of the auditor to proceed further, which were overruled. The executor then filed an answer to the notice, and on the 21st day of January, 1895, the auditor issued a subpoena for the executor, requiring him to appear forthwith before him, and to bring with him all notes, mortgages, and bonds in his possession, as such executor, to testify in said proceeding. The executor appeared on the 24th day of January, 1895, and filed further objections to the jurisdiction of the auditor, which were overruled; and thereupon he was examined under oath.

'Upon consideration of the evidence the auditor found that William P. Gallup, in addition to the property returned by him for taxation, was the owner and in possession of other taxable personal property not listed and not taxed during the several years from 1881 to 1893 specifically stated for each year, and January 25, 1895, placed the same upon the tax duplicates, and computed and extended taxes thereon for the whole of said period, including statutory penalties and interest, the sum of $61,233.59. After the same was placed upon the duplicate in the treasurer's hands he made demand upon the executor to pay said additional taxes, but he refused to pay all or any part thereof.

'The executor on the 4th day of January, 1895, filed in the circuit court his final settlement report, and gave notice that the same would be finally heard on the 26th day of January, 1895; and upon the day set for the hearing of the report, the same being the next day after the additional assessments had been placed upon his duplicate, Holt, as treasurer of Marion county, filed in said court, under § 8587, Burns's Rev. Stat. 1894, in the term thereof that was then running, his petition for an order upon the executor to show cause why he should not pay the taxes assessed by the auditor. The order was granted, and on February 9, 1895, the executor appeared and filed his motion to dismiss the said proceedings for the reason that the court had no jurisdiction to proceed to hear the cause, for the reason that the county treasurer was not authorized, under the law, to present said claim to the court at the January term, 1895.

'More than two years afterwards, to wit, December 18, 1897, the court overruled appellant's [the executor's] motion to dismiss; and on June 18, 1898, appellant [the executor] filed his answer in eight paragraphs. A demurrer to each, the third, fourth, fifth, and sixth was sustained. A trial was had before the court upon the issues joined upon the petition, answers of general denial, payment and set-off, and, upon a special finding of facts and conclusions of law favorable to appellee [the treasurer] judgment was rendered against appellant [the executor] that he pay to appellee [the treasurer] on account of said omitted taxes the sum of $46,996.69.'

Appeals were taken by both parties from the decree of the circuit court of Marion county to the supreme court of the state. That court was of opinion that the executor, as appellant, was not entitled to a reversal, but that, for error of the circuit court in allowing the executor a certain credit of $5,750 upon the amount recovered, the judgment must be reversed with instructions to restate conclusions of law in accordance with the opinion of the supreme court, and render judgment thereon in favor of the treasurer for the sum of $52,746.69, with interest from October 31, 1898; and final judgment for said amount was accordingly so entered by the circuit court of Marion county, to which judgment a writ of error was allowed, and the cause brought to this court.

Messrs. W. H. H. Miller, Wayne MacVeagh, John B. Elam, James W. Fesler, and Samuel D. Miller for plaintiff in error.

Messrs. William L. Taylor, William A. Ketcham, Martin M. Hugg, Frederick A. Joss, Merrill Moores, and Cassius C. Hadley for defendant in error.

Mr. Justice Shiras delivered the opinion of the court: