dissenting from the majority of the court, delivered THE FOLLOWING OPINION:
The appellant neither demurred to appellee’s petition nor plead to the jurisdiction of the court. Appellee averred that appellant had refused to list its property for taxation; this is not denied. It is not suggested in the answer, nor set up as a defense, that appellee had failed to take any essential step to the maintenance of her suit; but her legal right to have an assessment of appellant’s property for the purposes of taxation is denied, and bar by lapse of time is also set up to a portion of the claim; and these are the only issues made in the record. If the necessary steps here taken by Auditor’s agent to ascertain the property of appellant liable to taxation, and a refusal by its, then there can be no doubt of the jurisdiction of the Franklin circuit court to compel the payment of the taxes under the act of February 20, 1864. (Myers’ Digt., 11.)
The court below having found against appellant on both these issues, which is approved by the unanimous voice of this court, it seems to me that the judgment should be affirmed.
Appellant should not now be heard upon issues not made in the record, and upon which the court below pronounced no judgment, and a reversal had upon defenses not set up in the pleadings.
As appellant staked its case upon liability to assessment, all the preliminary steps to try this issue should be deemed to have been taken or waived; or, in other words, if it be liable to an assessment and taxation, it should now be deemed liable to the action.
For these reasons I do not concur in the reversal.