Lucas Circuit Court. on error. This view of the matter makes it unnecessary for us to inquire whether the court erred in its order refusing to require the complainants to make their complaint more specific and definite. It also makes it unnecessary for us to inquire into another question submitted by the plaintiff in error, that is to say, whether or not one-half of the legatees joined in this complaint, which seems to be required by Sec. 6334, Rev. Stat. if the court undertakes to proceed altogether upon the complaint of legatees or heirs. After looking carefully over this order, we think there is sufficient in it to show that the court was undertaking to exercise and did exercise its authority to act upon its own motion, in what it conceived to be the interest of the estate, in removing this trustee, and that its action in that regard is not subject to review. As I have said, plaintiff in error also complains of the further order of the court requiring Mr. Stafford to convey this property in Michigan to the remaining executor and trustee. We have not seen fit to examine that question very closely, because we did not feel called upon to pass upon it; we do not think it necessary. It the court has exceeded its jurisdiction in undertaking to require the conveyance of property lying in another state, certainly its order, to that extent is a nullity and can eflect nothing. If Mr. Stafford, as trustee, is vested with the title to any property in another state by virtue of a will and independently of his letters as executor and trustee, then the order of the court in so far as it undertakes to divest that title, would be a nullity and entirely ineffective, and we do not think it would be prejudicial further than that it might possibly cast a cloud over the title of the trustee. Whether he has a title that cannot be disturbed by the order of the probate court of this county, we do not undertake to say; we simply suggest that if he has such a title, the order of the probate court would not affect it. Finding no error in the action of the probate court or in the action of the court of common pleas in declining to disturb the order and judgment of the probate court, the judgment of the courts below will be affirmed. TAXATION-RETURNS-COLLECTION. [Lucas Circuit Court, July 2, 1901.] Haynes, Parker and Hull, JJ. TOLEDO BRIDGE COMPANY v. JOSEPH L. YOST, TREAS. 1. SECTION 2781, REV. STAT., METHOD OF COLLECTION. Section 2781, Rev. Stat., providing that taxes on property omitted from the duplicate and subsequently entered thereon by the county auditor" shall be collected the same as other taxes" requires that such taxes shall be collected by the same methods and processes as o her taxes, but not at the same periods for the semi-annual payments of taxes; that is, they are to be collected as delinquent taxes, and it is the duty of the county treasurer after such taxes have been entered on the duplicate, to promptly institute proceedings for the collection of the same under Sec. 2859, Rev. Stat., by distraint or otherwise, and an action so commenced is not prematurely brought. 2. GENERAL Verdict ShouLD BE SUSTAINED UNLESS CLEARLY INCONSISTENT. A general verdict should be sustained unless it is clearly inconsistent with any theory provable under the issues and that the evidence tends to support. Hence, the fact that the amount of the verdict, in an action for the recov ery of taxes not listed by the owner on the duplicate, is substantially equiva Bridge Co. v. Yost. lent to the taxes as returned by the auditor, for years previous to the current year, without penalty and interest, does not necessarily indicate that there was no evidence of falsity in the returns of defendant within the meaning of Sec. 2781, Rev. Stat., there being no interrogatories, no special verdict and nothing which distinctly says that the jury found there was no fraud on the part of defendant. The jury in such case was not bound to return a verdict that the defendant had not been guilty of making false returns. 8. DUTY TO Return Property for TAXATION. It is the duty of the resident property owner to return his taxable property for taxation, but in order to render a return thereof a "false return," within the meaning of Sec. 2781, Rev. Stat., there must appear, if not a design to mislead or deceive on his part, at least culpable negligence. 4. WHEN QUESTION OF RETURN SHOULD GO TO JURY. The appearance of officers of a corporation before the board of equalization on certain occasions, to make inquiries and having interviews there, is not sufficient to require the jury to say that their returns were not false, where there is evidence tending to show that such corporation had not proceeded with care and diligence in ascertaining what was required of them. In such case the question should be submitted to the jury. 5. TAXATION OF MATERIAL OF MANUFACTURING COMPANY. Material purchased in other states by a bridge manufacturing and construction company for use in its business in this state, which does not come to its factory to be changed or operated upon, but goes directly to the place of use, is subject to taxation under Sec. 2742, Rev. Stat., and a request to charge that all such property not produced at the factory, used in the construction of bridges generally, was properly refused. Whether such property not brought into or used in this state at all, is subject to taxation, quaere. RULE AS TO COLLECTION PRIOR TO CURRENT Year. Where there is no falsity in the returns of a taxpayer for taxes on property not returned, within the meaning of Sec. 2781, Rev. Stat., proceedings should be brought under Sec. 2742, Rev. Stat., and under no other section, and if brought under the section mentioned, the auditor could not go back of the current year and enter upon his tax duplicate any alleged delinquent or omitted taxes for the years prior thereto, but if, in proceedings under such provision, he finds omitted taxes of the current year, such taxes may be added by a method substantially, if not precisely, like that afforded by Sec. 2781, Rev. Stat., or a proceeding may be instituted under Sec. 2859, Rev. Stat., but in no event can taxes be collected back of the current year unless falsity in returns be established prior to the enactment of Sec. 2781a, Rev. Stat., March 22, 1900. 7. POSSIBILITY OF PREJUdice-Reversal. Where, in an action to recover omitted taxes, prior to the enactment of Sec. 2781a, Rev. Stat., the trial judge omitted to direct the jury that they could not enter into their verdict taxes for years prior to the current year unless upon a finding of false returns, and the verdict, including taxes for previous years returned without special findings, suggests, by omitting penalties, that the jury did not find that there had been false returns, a reviewing court, being unable to be sure that the erroneous charge did not result prejudicially, should reverse the judgment. HEARD ON Error. E. W. Tolerton, for plaintiff in error. Charles E. Sumner and J. B. Jones, for defendant in error. PARKER, J. The petition in the court below, by Yost, as treasurer of Lucas county, against the Toledo Bridge Company, sets forth that the bridge company is charged upon the tax duplicate of Lucas county with personal property taxes, as follows: 29 O. C. D. Vol. 12 Lucas Circuit Court. .... For the year 1894 upon $24,600, taxes due........ $703 56 896 10 954 72 715 20 1195 20 1148 40 Making an aggregate sum now due and payable...... $5,613 18 The prayer is for a judgment for that amount and for an added sum of five per cent. due to the treasurer upon the collection of these taxes. Attached to the petition, as an exhibit, is a certificate of William M. Godfrey, as auditor of Lucas county, dated January 13, 1900, setting forth that he had, upon that day entered upon the tax-lists in his office against the Toledo Bridge Company in the above amounts in addition to the returns made by said Toledo Bridge Company of their personal property for taxation in the years 1894, 1895, 1896, 1897, 1898 and 1899, with penalty and taxes thereon, and that the same are therewith transmitted to the treasurer for collection in pursuance of the statute in such cases made and provided. To that is attached a tabulated statement, in substance the same as I have read from the petition, though somewhat more in detail. The bridge company filed an answer in which it sets forth that from the years 1894 to 1899, inclusive, it returned annually for taxation all of its personal property as required by law; that the defendant is a manufacturer of bridges and annually during said years returned for taxation the average value of all personal property purchased, received, or otherwise held for the purpose of being used in whole or in part in the construction of bridges and other work manfactured by the defendantt as required by Sec. 2742, Rev. Stat., and that during each of said years, the defendant has paid to the treasurer of said county the full amoun, of taxes due upon the property so returned by it for taxation. I quote a part: "And this answering defendant says that if the amounts set forth in the plaintiff's petition stand charged against the defendant on the tax duplicates of said county, the same is unauthorized and illegal. That about eight o'clock P. M. of January 14, 1900, the auditor of said county, at the request of the tax inquisitor thereof, and without any knowledge or notice to said defendant, entered upon said tax duplicates the amounts set forth in the petition, for said years respectively. And thereupon, and without notice to the defendant, this action was immediately begun by the plaintiff, to collect the taxes so put upon said duplicates by said auditor, wrongfully, illegally and without authority of law. "Defendant further in answering, says, that prior to the date aforesaid, at the request of said tax inquisitor, the said auditor issued a notice to the defendant to appear at his office for the purpose of having an inves tigation as to omitted personal property for taxation on the part of said defendant. That said investigation was fully made; and the defendant avers that there was no evidence produced before said auditor on said hearing, showing that said defendant company had omitted any property whatever for taxation during said years; and it therefore avers that the action of said auditor in placing said amounts on the tax duplicate against said defendant on account of property omitted by it from its returns for taxation during said years, was without authority of law. And this answering defendant therefore denies that it is indebted to Bridge Co. v. Yost. the plaintiff in any amount whatever for taxes, as alleged in the petition, and prays that this action may be dismissed." To that the plaintiff filed a reply and averring that "On or about June 10, 1899, the auditor of said Lucas county brought the said defendant by its agents and officers before him under Secs. 2781 and 2782, Rev. Stat., and gave it an opportunity to show that its returns of personal property for taxation for each one of the years 1894 to 1899, both inclusive, were correct, but said defendant failed to show that said returns were correct for any one of said years, and thereupon said cause, by the consent of said defendant, was continued from time to time until December 4, 1899, and then said defendant being present by its said officers, agents, and its attorneys, a full investigation of said returns was made and said auditor took testimony both competent and sufficient and said defendant presented such evidence as it desired, but it again failed to show that its returns were correct for any one of said years and thereupon said auditor found that the returns made by said defendant of its personal property for taxation for each one of said years, 1894 to 1899 inclusive, were false and upon the same evidence said auditor corrected said false returns and found the several amounts described and set forth in his office and placed the same on the proper duplicates and certified the same to the treasurer of said county for collection as other taxes. "That it is not true that said defendant from the year 1894 to the year 1899, both inclusive, returned annually for taxation all of its personal property as required by law: that it did not annually return for taxation during said years the average value of all personal property purchased, received or otherwise held for the purpose of being used in whole or in part for the construction of bridges and other work manufactured by defendant as required by Sec. 2742, Rev. Stat. That it may be that said defendant paid the taxes on such property as it returned for each one of said years, but such returns were false. That the amounts set forth in said petition are on said tax duplicates and are legal and authorized. "The said auditor did not, on January 14, 1900, or at any other time make any entries upon the tax duplicates at the request of the tax inquisitor; nor did he make any entries upon said duplicates without first giving the said defendant ample opportunity to show that its said returns were correct; that said amounts as found by said auditor to be wrongfully omitted from taxation were put upon said duplicates according to law, and this plaintiff brought this action as he was required by law to do. "That upon the hearing betore said auditor, said auditor heard evidence that satisfied his mind that said defendant had omitted large amounts of personal property and had made false returns thereof each one of said years, and said corrections of said returns were not without authority." The case was tried to a jury, and as a part of the record, a bill of exceptions, ontaining all of the evidence submitted to the jury, is presented here. The total amount claimed, as I have said, was $5,613.18 with interest. The verdict of the jury in favor of the auditor of the county was for $4,080.24. The action was brought under Sec. 2859, Rev. Stat. The plaintiff in error complains of the action of the court in various respects and urges against the correctness and validity of this judgment various points, all of which may not be fully discussed by us this after Lucas Circuit Court. noon, though they have received consideration at our hands in consultation. But One contention on behalf of the plaintiff in error is: That the action was prematurely brought; that the added taxes were not due: that, since Sec. 2781, Rev. Stat., provides that the taxes thus entered upon the duplicate by the auditor shall be collected by the treasurer "the same as other taxes," they should have been entered upon the duplicates and collected, one-half at the next period for the semi-annual payments of taxes and the other half at the next following period. we are of the opinion that the meaning of the words "shall be collected the same as other taxes," is, that they shall be collected by the same methods and processes, though not at the same time. These taxes are collected as delinquent taxes. Some of the taxes are alleged to have been delinquent, and we are of the opinion that it is competent and proper and that it is the duty of the treasurer to institute an action for the collection of these taxes under Sec. 2859, Rev. Stat., promptly upon the taxes being entered upon the duplicate; that he should proceed promptly to collect under that section or by process of distraint, or otherwise, as provided by law. It is also contended by plaintiff in error that there is no evidence of any falsity in the returns of the bridge company, within the meaning of Sec. 2781, Rev. Stat., that the jury had so found by the verdict; and, if they had not so found their verdict would have been wrong; in other words, it would not have had evidence to sustain it. First, as to whether they have so found. This contention is based upon a calculation made by the plaintiff in error, that the amount of this verdict is the equivalent of the taxes as returned by the auditor, without penalty, and the interest accruing thereon to the time the verdict was returned; and the two amounts do appear to be substantially the same, and yet we cannot be certain, that the verdict was arrived at in that way. There were no interrogatories submitted to the jury, no special verdict, nothing returned by the jury which says distinctly, that they found that there was no fraud upon the part of the bridge company; that is to say, no falsity in their returns. They may have concluded that there was no falsity, and they may have arrived at this verdict in the way surmised by counsel for the plaintiff in error. But, we cannot be sure of that; they may have arrived at this result in another way; they may have arrived at it by scaling down the amounts for these various years, or for some of them, and then adding the penalty to that and they may have thereby brought out the same result. A general verdict is to be sustained unless it is clearly inconsistent with any theory provable under the issues and that the evidence may tend to support. It is also urged that if the verdict of the jury is, in effect, that there was falsity in these returns, it is not sustained by the evidence. I need not enter upon the discussion of this evidence. I shall content myself with saying that we are not prepared to say that the jury was bound to return a verdict in efect that the defendant had not been guilty of falsity in making these returns. The term "false return" as used in the statute, has been defined by our Supreme Court, and I call attention to the language used in one case which seems to be to the point here: Ratterman v. Ingalls, 48 Ohio St. 468, 489 [28 N. E. Rep. 168]: |