Beautygard Manufacturing Co. v. Geeslin

266 N.E.2d 61, 148 Ind. App. 340, 1971 Ind. App. LEXIS 459
CourtIndiana Court of Appeals
DecidedJanuary 27, 1971
DocketNos. 1069A174, 1269A235, 1069A196, 1169A209, 1069A195, 1169A205, 1169A206, 1069A175, 1269A232
StatusPublished
Cited by3 cases

This text of 266 N.E.2d 61 (Beautygard Manufacturing Co. v. Geeslin) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beautygard Manufacturing Co. v. Geeslin, 266 N.E.2d 61, 148 Ind. App. 340, 1971 Ind. App. LEXIS 459 (Ind. Ct. App. 1971).

Opinion

Original Actions

Hoffman, C.J.

The above causes were removed to this court pursuant to Acts 1969, ch. 204, § 5, p. 768, Ind. Stat. Anno., § 64-1004a, Burns’ 1970 Cum. Supp. In each a motion to remand was filed.

These causes are now consolidated for the sole purpose of ruling upon the motions to remand.

Pursuant to order of this court dated February 19, 1970, the parties hereto were required to file motions, petitions, briefs or memoranda concerning the following:

(a) Jurisdiction of the Appellate Court over the subject-matter of these causes and over the particular actions;
(b) The constitutionality of § 64-1004a, supra, particularly as to the validity of the provision giving 1) original jurisdiction to the Appellate Court to hear and determine such appeal; and 2) providing for the trial of the cause without the intervention of a jury.

As an aid to clarity it is deemed necessary to set forth the statutory provisions which serve to form the issues for decision.

Acts 1963, ch. 231, § 1, p. 317, Ind. Stat. Anno., § 64-1004, Burns’ 1970 Cum. Supp., reads as follows :

“Appeals to circuit or superior court. — Any person shall have the right to appeal from the final determination of the [343]*343state board of tax commissioners regarding the assessment on his property to the circuit or superior court of the county in which said property is being assessed. Appeals may be consolidated, at the request of the appellants, in order to save the expenses thereof, when it can be done in the interest of justice. At any time within thirty [30] days after the board gives notice of its determination, an appeal may be taken by filing a written notice with the board asking for such appeal and designating the court to which such appeal is being taken, together with the filing of a complaint in said court, a copy of which shall be served upon the attorney general as provided by the Acts of 1945, chapter 3, section 1 [§ 49-1937], as amended; no such appeal shall be deemed to have been commenced unless the service of such complaint upon the attorney general, as therein provided, is made within thirty [30] days after the board gives notice of its determination as provided herein. Upon such appeal being requested, the secretary of the board shall make out and certify to a complete transcript of the proceedings, not including the evidence, had with respect to the property of the person so appealing, and transmit the same to the clerk of the designated court. Such appeal shall be tried by the court without the intervention of a jury; and the trial shall be governed by the laws governing civil actions. All appeals under this section shall be advanced on the docket of the court and shall be entitled to precedence in the consideration of the court. Whenever a final determination by the state board of tax commissioners regarding the assessment of any real or tangible personal property which is taxable under this act, or any prior or other act, shall have been vacated, set aside or adjudged null and void pursuant to the finding, decision or judgment of any court of competent jurisdiction, the matter of the assessment of such property shall, in all instances, be remanded to the state board of tax commissioners for reassessment and further proceedings in accordance with law. The owner of any such property shall have the right to appeal from such final determination of the state board of tax commissioners regarding the reassessment of his property to the circuit or superior courts of the county in which said property is situated as hereinabove provided.”

Section 64-1004a, supra, reads as follows:

“Removal of appeal to Appellate Court. — In any appeal to the circuit or superior court pursuant to section 1004 [1204] [§ 64-1004], in which the state board of tax com[344]*344missioners has determined that the taxpayer’s property has a total assessed value of at least $3,000 more than the total assessed value shown on the taxpayer’s returns, either the taxpayer or the state board of tax commissioners may, within ten [10] days after the attorney-general has received the complaint as provided in section 1004 [1204] [§ 64-1004], file with the clerk of the Appellate Court of Indiana, a petition for removal of the appeal to such court. The party so petitioning shall serve notice of such removal by first class mail on all parties to such appeal, or their attorneys of record, and the court in which the appeal is docketed. The filing of such petition shall constitute a removal of said cause to the Appellate Court of Indiana, which shall have original jurisdiction to hear and determine such appeals as would the court from which the appeal is removed, without the intervention of a jury, and the laws and rules governing civil procedure in the trial of cases shall be applicable to such appeals. The court in which the appeal was first docketed shall forthwith forward to the Appellate Court of Indiana all transcripts, papers and documents in its possession pertaining to such appeal. The Appellate Court of Indiana shall adopt and promulgate rules for the exercise of the jurisdiction conferred upon it by this section. Such rules may provide for the appointing of a commissioner or for orders of reference to any judge of a court of inferior jurisdiction to facilitate the taking of evidence and the making of findings of fact and conclusions of law, which may be adopted or rejected as a part of the decision of the court. The Appellate Court is hereby authorized to issue all writs and orders necessary to effectuate its jurisdiction under this section. Nothing herein shall effect the withdrawing or limiting any of the present jurisdiction of the Supreme Court.”

Section 64-1004a, supra, was added by the 1969 General Assembly and will hereinafter be referred to as the “1969 Removal Act.”

Although the 1969 Removal Act contains no provision for remand of a cause from this court to the circuit or superior courts1 we have entertained motions to remand for the pur[345]*345pose of contesting the jurisdiction of this court and constitutionality of the Act.

The points raised and argued by counsel in support of their respective motions to remand are not readily subject to catagorization as constituting an attack upon the jurisdiction of this court, or as an attack upon the constitutionality of the 1969 Removal Act. As § 64-1004a, swpra, defines the jurisdiction of this court, to find the statute unconstitutional would be also to find that we have no jurisdiction.

However, for purposes of discussion, we have chosen to divide the propositions advanced by counsel into two groups:

I. Those which do not involve a definite- constitutional provision, but which serve to attack the jurisdiction of this court.
II. Those which maintain the 1969 Removal Act to be in direct contravention of a specific constitutional provision.

I. JURISDICTION OF THE APPELLATE COURT A. JURISDICTION DEFINED BY GENERAL ASSEMBLY

It is maintained that the Appellate Court was originally established as a court of review2 and cannot, or should not, function as a trial court with original jurisdiction.

The Appellate Court is, pursuant to the Constitution of Indiana,3

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Cite This Page — Counsel Stack

Bluebook (online)
266 N.E.2d 61, 148 Ind. App. 340, 1971 Ind. App. LEXIS 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beautygard-manufacturing-co-v-geeslin-indctapp-1971.