Aocker v. Buell
| Decision Date | 08 September 1970 |
| Docket Number | No. 170A12,170A12 |
| Citation | 147 Ind.App. 422,261 N.E.2d 894 |
| Parties | Edmund J. AOCKER, the State of Indiana ex rel. Edmund J. Aocker, Appellant, v. Lawrence L. BUELL, as Treasurer of Marion County, Indiana, IndianapolisNewspapers, Inc. and/or the Indianapolis News, Keith Bulen, as Chairman of theScreening Committee of the Marion County Republican Central Committee, E. AllenHunter, EdwinJ. McClure, James E. Kelley, as and constituting the Election Commissioners ofMarion County and/or the Marion County Election Board, and E. Allen Hunter, asClerk of Marion County, Indiana, Appellees. |
| Court | Indiana Appellate Court |
William C. Erbecker, Indianapolis, for appellant.
Raymond W. Gray, Jr., Indianapolis, for appellees.
This is an appeal brought by appellant, plaintiff below, against appellees, defendants below, alleging as his sole assignment of error the sustaining of defendants' demurrer to appellant's complaint.
The original action by plaintiff was a suit for damages arising out of the primary of May 7, 1968, wherein plaintiff Aocker claimed the defendants conspired to deprive him of his chances of nomination for the officer of Marion County Treasurer.
The appellant contends that the appellees conspired and defrauded him of his right to a proper announcement of his candidacy in a newspaper notice by incorrectly listing him as a candidate for State Representative instead of listing his candidacy for Marion County Treasurer. Appellant further contends that as a result of this misrepresentation he was defeated in his party's primary and thus suffered a loss of salary between his present occupation and that of what he would have made had he not been defeated in the primary. This difference over a four year period amounted to $50,000, which amount he seeks to recover.
The appellant's complaint named all of the appellees, setting out their official capacities, and that the Indianapolis Newspapers, Inc., and/or the Indianapolis News, was a newspaper in Indianapolis with a wide circulation and carried public notices of and concerning candidates for the May 7, 1968 primary.
The said newspaper did print and publish, on April 24, 1968, in the Indianapolis News, a list of the candidates and that a copy of which notice was attached to the complaint, made a part thereof and identified as Exhibit 'A'.
Appellant further alleged that he was a resident citizen of the United States and the City of Indianapolis; that he was a Republican candidate for the office of Treasurer of Marion County, Indiana; that he was legally entitled to be a candidate for the office of Treasurer of Marion County, Indiana; that his announcement and entrance as a candidate was not challenged prior to his being a candidate in the May 7, 1968 primary.
Appellant further charged that defendants Buell, Bulen, Burkhart, Hunter, McClure and Kelley, by virtue of their respective official positions, knew that appellant was a candidate for the office of Treasurer, subject to the Republican primary on May 7, 1968; and all of the aforesaid appellees knew that Aocker was not a candidate for the office of State Representative in the Republican primary of May 7, 1968; that all defendants-appellees knew and participated in determining that E. Allen Hunter, Republican County Clerk, was to cause the Indianapolis Newspapers, Inc. to place the name of Edmund J. Aocker in the place and space reserved for announced candidates for the State Legislature subject to said Republican primary, thereby intending to defraud appellant of his right to a proper announcement as being a candidate for the office of County Treasurer; that said conspiracy was formed, conceived and acted upon for the sole purpose of misinforming the public and as a result thereof appellant was defrauded of his rightful place, space and position in the public notice published Wednesday, April 24, 1968, in the Indianapolis News; that his name was placed in the space reserved for State Representative candidates.
Appellant claims further that the difference between his wages as a seaman and the salary of the Treasurer for four years is $50,000, which amount he seeks to recover as the result of said alleged fraud and his defeat at the May 7, 1968 Republican primary.
The defendants joined in a demurrer to plaintiff's complaint, assigning one statutory reason, which was that the complaint did not state facts sufficient to constitute a cause of action, together with their memorandum.
The memorandum goes to the matter of speculative damages and that the acts of willfulness complained of were too remote from the damage allged. Whether appellant could prove loss as attributable to the acts of the defendants is a question of fact and is not an allegation as a matter of law; and isn't valid as a reason for sustaining the demurrer since the demurrer deals solely with allegations as a matter of law and not with the evidence or proof which may or may not support the allegations.
Appellant, in rhetorical paragraph 1 b. of his complaint specifically incorporates Exhibit 'A' as a part thereof, which complaint, together with said Exhibit 'A', this court is to review.
The 1970 Rules of Indiana Procedure gives authority to the appellate tribunal to search the record to discourage dismissals on technicalities. This court has made a diligent search of the record in the case at bar in compliance with this new policy and has failed to find Exhibit 'A', which is a material part of the complaint.
The trial court, in reaching its reason to sustain the demurrer, had all the pleadings before it and we shall assume that the trial court based its decision on all the pleadings, of which Exhibit 'A' was a part. In order for this court to review the decision of the trial court in a fair and objective manner we must have before us everything the trial court had before it in arriving at its conclusion. This statement gains emphasis especially when the omission is a material part of the proceedings in which a demurrer was passed upon. The materiality of the newspaper notice of April 24, 1968, cannot possibly be in doubt, since its publication is allegedly the reason for appellant's defeat in the primary, which defeat precipitated appellant's suit for damages. Said notice may be totally insignificant, or it could very well be the reason for appellant's defeat. For all this court can determine, Exhibit 'A' could contradict all the allegations in appellant's complaint.
Exhibit 'A' being omitted from the record makes the record on review materially incomplete and this court has no way of determining or reviewing the situation as it took place in the trial court.
This court, in the case of Boyer v. Southern Ind....
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...that the trial court's ruling was erroneous, and the judgment of the trial court must be affirmed. Aocker v. Buell, Treas. et al. (1970), 147 Ind.App. 422, 261 N.E.2d 894 (transfer Affirmed. GARRARD, J., concurs. LYBROOK, J., participating by designation, concurs. 1 IC 1971, 18--7--1.1--1 t......
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