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The City of Indianapolis v. Vajen.

makes it the duty of a municipal corporation to refund to the taxpayer money collected for taxes wrongfully or erroneously assessed. In case it is so directed by statute, it becomes the duty of the corporation to refund money received by it for taxes assessed upon property which, according to law, was not justly subject to the assessment, and it is no defence in such a case that the taxes were voluntarily paid. In such a case the question will be whether or not, according to the facts of which the assessing officer had notice, or with which the law charged him with knowledge, the property was justly subject to the tax assessed against it. Mere irregularity will not make the assessment wrongful or erroneous in such sense as to make the corporation liable to refund. Where, however, the property was not subject to the tax, and the corporation has, hence, no equitable right to the money it has received, it may be compelled to refund, when that duty is enjoined by statute. City of Indianapolis v. McAvoy, -supra; Board, etc., v. Graham, 98 Ind. 279; Newsom v. Board, etc., 92 Ind. 229; Board, etc., v. Ruckman, 57 Ind. 96; Durham v. Board, etc., 95 Ind. 182; Board, etc., v. Murphy, 100 Ind. 570; Board, etc., v. Armstrong, 91 Ind. 528; People, ex reh, v. Supervisors, etc., 51 N. Y. 401.

Section 3157, R. S. 1881, being a part of the general law for the incorporation and government of cities, provides, among other things, that the common council may at any time order the amount of taxes erroneously assessed against and collected from any taxpayer to be refunded to him. In respect to the refunding of taxes, this provision has been held mandatory. City of Indianapolis v. McAvoy, supra.

As has already been seen, the taxes against the appellee's bank stock were erroneously assessed, in that the assessor refused, after proper notice and demand, to allow any deduction from the value of the stock on account of the bona fide indebtedness of the owner. It was the assessor's duty to assess and return the bank stock, from the duplicate schedule furnished him, according to the provisions of the statute, and The City of Indianapolis ti. Vajen

if the owner had permitted the assessment and return to be completed, without notifying the assessing officer that he claimed and was entitled to a deduction from the"value of his stock on account of bona fide debts owing by him, it might be a question whether he could have thereafter challenged it as erroneous. The assessment would have been within the authority of the assessor, and not erroneous. Where, however, the officer receives proper notice, while the assessment is in fieri, that the shareholder owes bona fide debts, which he is entitled to have deducted from the value of his stock, it then becomes the duty of the assessor to allow such deductions in the same manner and under the same regulations as deductions are allowed in respect to other credits belonging to individuals. If the assessing officer afterwards proceeds in disregard of such notice and demand, the assessment will be erroneous to the extent that deductions to which the taxpayer is justly entitled are denied. Supervisors v. Stanley, 105 U. S. 305.

It appears from the special finding, that the appellee notified the assessor on each occasion, when he returned his list, that his indebtedness was largely in excess of his other credits, and demanded that it should be deducted from the value of his bank shares. The notice and demand were disregarded, on the ground that the law did not allow such deductions to be made, and not because of any informality in giving notice. The appellee was accordingly assessed for the full value of his stock without any deduction. This was an erroneous assessment. Taxes were paid to the city collector which were not justly due to the city, and the case, therefore, comes within the very terms of the statute which requires taxes so assessed and collected to be refunded. The city was not exonerated from the duty of refunding because the appellee did not appear before the board of equalization and there attempt to have the erroneous assessment corrected. The taxes were erroneously assessed. An erroneous assessment and collection are the conditions which Harvey etaL v. Fink.

require the city to refund. The existence of these conditions was found, and the city is liable.

The judgment is affirmed, with costs.

Filed June 14, 1887.

Harvey Et Al. V. Fink.

New Trial.An of Bight.—Motion to Vacate Order Chanting.Practice.— Where a party is in court, by his attorneys, when an order is made granting the opposite party a new trial as of right, and does not object thereto, he can not afterwards move to vacate the order upon the ground that it was made without his knowledge or consent.

Save,When Motion to Vacate Must be Made.—A motion to vacate and set aside an order granting a new trial as of right must be made at the earliest practicable moment to be available.

Same.Motion for New Trial After Term. —Where a verdict is returned on Thursday of the last week of a term of court, a motion for a new trial made on the fourth day of the next term comes too late, under section 561, R. S. 1881, and can not be entertained.

Appeal.Complaint for New Trial.Separate Action.—The proceedings upon a complaint for a new trial after the close of the term at which a cause has been disposed of constitute a separate and distinct action, and from the judgment rendered therein an appeal may be taken to the Supreme Court. An appeal from the judgment in the original cause does not present for review the judgment rendered upon the complaint for a new trial.

Same.Review of Judgment.Waiver.—Where a party files a complaint for review for alleged errors of law only, and prosecutes the proceeding to final judgment, he can not afterwards appeal from the judgment sought to be reviewed, as the adoption of one remedy waives the other.

From the Hancock Circuit Court.

J. B. Julian, J. F. Julian and 8. Griffin, for appellants. D. S. Gooding, J. A. New, J. W. Jones and M. B. Gooding, for appellee.

Niblack, J.—On the 27th day of April, 1882, Lucinda Harvey el aL r. Fink.

J. Harvey and eight others, claiming that they were owners in fee simple of an undivided one-half of a sixty-acre tract of land in Hancock county, and that Henry Fink was, in like manner, the owner of the other half, filed their complaint for partition, making Fink a defendant in the proceeding.

The defendant answered in denial as well as special matters in the nature of an estoppel in defence. He also, by way of cross-complaint, set up a claim for improvements made and taxes paid on the land.

Issues being formed both upon the complaint and crosscomplaint, the plaintiffs obtained a verdict for one undivided half of the land and a judgment in partition on the verdict.

The record informs us that afterwards, at the October term, 1883, of the court below, the plaintiffs came by their attorneys, naming them, and that the defendant, also, came by his attorneys, likewise naming them; that the defendant thereupon filed his motion for a new trial; that the court, after being fully advised in the premises, granted a new trial to the defendant as of right; that, by agreement of parties then entered into, the issues in the cause were opened and the defendant was given leave to file an amended answer to the complaint, within a time limited, during the term. Before the close of the term the plaintiffs filed an amended complaint, and various proceedings were, from time to time, thereafter had in the formation of issues on the pleadings and in other matters looking to the preparation of the cause for another trial, when, on the 5th day of April, 1884, the plaintiffs entered a motion to vacate and set aside the order granting a new trial as of right, and all proceedings subsequent thereto, upon the ground that such order was made without their knowledge or consent, which motion was overruled by the court.

The defendant had, in the meantime, answered the amended complaint of the plaintiffs, in three paragraphs, to Harvey et al. v. Fink.

the third of which a demurrer was interposed, and overruled before issue was joined upon it.

At the June term, 1884, the cause was, by agreement, again submitted to a jury for trial, and the jury, after hearing the evidence, returned a general verdict for the defendant, with answers to numerous interrogatories submitted to them touching particular questions of tact. The plaintiffs thereupon moved the court to set aside the verdict and to grant a venire de novo, because the jury had not found on all the points or answered fully several of the interrogatories submitted to them, and because their findings were inconsistent, irreconcilable and incapable of enforcement. But, without further proceedings, the cause was permitted to stand continued until the ensuing October term, when, on the first day of that term, the motion for a venire de novo was overruled. The plaintiffs then moved for judgment in their favor upon the answers to the interrogatories, notwithstanding the general verdict, and that motion was likewise overruled.

On the fourth judicial day of said October term, the plaintiffs filed a motion for a new trial, assigning various and elaborately presented causes, to the filing and entry of which the defendant objected, and, at his suggestion, the motion was ordered to be struck from the files of the court, which was done accordingly, and a judgment on the verdict was entered in favor of the defendant.

Later in the term the plaintiffs asked leave to file a motion for a new trial, and affidavits in support thereof, and to have the motion then heard; but the desired leave was not granted, and the court declined to hear the motion.

On the 9th day of December, 1884, which was after the close of the October term of that year, the plaintiffs filed a new complaint against the defendant, in three paragraphs. The first paragraph was simply a complaint for a new trial, assigning some of the statutory causes and other special matters in support of the application, as in ordinary motions

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