DocketNumber: No. 19318
Citation Numbers: 150 N.E. 359, 114 Ohio St. 52, 114 Ohio St. (N.S.) 52
Judges: BY THE COURT.
Filed Date: 1/19/1926
Status: Precedential
Modified Date: 1/12/2023
This is an action begun in May, 1923, by the treasurer of Franklin county, to collect delinquent taxes claimed to be due from the Ætna Casualty Surety Company for the years 1916, 1917, and 1918. The action was brought under Section 5697, General Code; the plaintiff adopting the short form of petition as provided in the section mentioned. The defendant by answer denied the allegations of the petition and averred that the taxes were illegal on several grounds set out in the answer.
In the court of common pleas a jury was waived and the case presented to the trial judge. The evidence offered by plaintiff to sustain the allegations of the petition was rejected by the court as incompetent, and judgment was rendered in favor of the defendant. Error was prosecuted to the *Page 53
Court of Appeals, which court reached the conclusion that the judgment of the court of common pleas should be reversed by reason of that court having excluded the evidence as stated, but found that its conclusion so reached was at variance with a decision of the Court of Appeals of Lawrence county, in the case of Fearon Lumber Veneer Co. v. Robinson, Auditor, decided December 12, 1913,
Section 5697, General Code, provides that:
"It shall be sufficient, having made proper parties to the suit, for the treasurer to allege in his bill of particulars or petition that the taxes stand charged upon the duplicate of the county against such person, that they are due and unpaid, and that such person is indebted in the amount appearing to be due on the duplicate, and the treasurer need not set forth any other or further special matter relating thereto. The tax duplicate shall be prima facie evidence on the trial of the action, of the amount and validity of the taxes appearing due and unpaid thereon, and of the nonpayment thereof, without setting forth special matter relating thereto."
The treasurer in this action filed that form of petition and then sought to maintain it by offering, first, the treasurer's duplicate list of personal taxes for 1918. This duplicate was objected to on the ground that no duplicate was competent evidence except the duplicate of the current year, the year preceding the bringing of the action, which would be the duplicate of 1922. The trial court *Page 54 sustained this objection and excluded the duplicate offered. Thereupon the treasurer offered in evidence a book known as the treasurer's delinquent personal book No. 9. This was objected to by defendant on several grounds, among others that the evidence of the deputy auditor, which was taken, clearly showed that this book was not prepared pursuant to the requirements of Section 5694, which provides that, immediately after the August settlement between the treasurer and the auditor, the auditor shall forthwith make up a list of the unpaid taxes, as shown by the treasurer's general duplicate, returned to the auditor, and the treasurer's delinquent list, also returned to the auditor, and that a duplicate of these delinquent and unpaid taxes so compiled shall be filed with the treasurer on the 15th of September following the settlement.
It was further contended that the evidence of the deputy auditor clearly disclosed that the matter contained in the book, which was offered in evidence, was not compiled by the auditor's office from the general duplicate returned by the treasurer to the auditor at the August settlement, nor from the delinquent duplicate returned by the treasurer to the auditor, but that the amounts found on that page of the book, which was offered in evidence, were carried forward and copied from the duplicates of 1916, 1917, and 1918, as they appeared on the duplicate prepared by the auditor for the last time in 1919; that being the duplicate of 1918.
It appeared from the evidence that this treasurer's personal delinquent book No. 9 was a book *Page 55 that had been used for a number of years, but no entry had been made of the taxes in question, subsequent to 1919, except the entry that was carried forward in 1922, but actually entered therein in 1923 by the auditor.
The trial court excluded this book as entirely incompetent, holding that the auditor had no authority to make the entries in this book that were made at the time that he made them with respect to these taxes being delinquent. The evidence of the deputy auditor disclosed further that but one copy was prepared, to wit, Exhibit B, which was offered in evidence by the auditor, and that that copy was sent to the treasurer, and no copy thereof was retained in the auditor's office.
It is contended on behalf of the plaintiff that the leaving of these taxes off of the tax books from 1919 to 1923 is a matter of no importance, in view of the fact that the taxes were really left off the books by reason of certain action of the common pleas and appellate courts holding these taxes to be invalid, which decisions were later reversed by this court in the case of Valentine, Aud., v. Canadian Life Assurance Co.,
The following decisions clearly sustain the rulings of the trial court with respect to the competency of the evidence offered: Board of County Comm'rs. of Hamilton Co. v. Arnold,
We are not intending to hold that these taxes may not now be collected. We are only holding that the evidence offered by the plaintiff in this case was not competent and was properly excluded by the trial court.
Judgment of the Court of Appeals reversed, and that of thecommon pleas affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur. *Page 58