Ardery v. Smith
| Decision Date | 15 March 1905 |
| Docket Number | No. 5,062.,5,062. |
| Citation | 35 Ind.App. 94,73 N.E. 840 |
| Parties | ARDERY et al. v. SMITH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Jennings County; William Fitzgerald, Special Judge.
To an application by Warren A. Smith for a liquor license, Charles Ardery and others filed a remonstrance. From a judgment granting a license, the remonstrants appeal. Reversed.
Lawrence & Son, T. C. Batchelor, and C. A. Batchelor, for appellants. Joseph H. Shea and Mark Storen, for appellee.
On February 7, 1903, appellee published notice of his intention to apply to the board of commissioners of Scott county, at the regular session to be begun and held on the first Monday of March in said year, for a license to sell intoxicating liquors in less quantities than a quart at a time, with the privilege of allowing them to be drank on premises described, in the town of Scottsburg, Vienna township, Scott county, Ind. On February 27th there was filed in the auditor's office of said county a remonstrance, in accordance with the provisions of section 9 of an act approved March 11, 1895 (Acts 1895, p. 251, c. 127), purporting to be signed by 372 resident voters of said township. On March 2d appellee filed in said office his verified application for license in accordance with the terms of the notice, and also a verified motion to strike from the remonstrance the names of 341 persons. The motion was overruled, and the cause continued until the 6th day of March, at which time appellants Ervin and Cline filed a remonstrance against the issuance of said license; averring therein that the appellee was not a man of good moral character, and setting out facts tending to show a prior violation of the law by him. The board found against appellee upon the general remonstrance, and refused to issue a license. Appellee thereupon appealed to the Scott circuit court. The venue of the case was changed to Ripley county, and again to Jennings county, where appellants filed a motion to dismiss the application. Such motion was overruled. They thereupon demanded a trial by jury both upon the general remonstrance and the separate remonstrance of Ervin and Cline. Their motion to that effect was overruled. The court sustained appellee's motion to strike out the names aforesaid purporting to be signed to the general remonstrance, and, refusing to try the issue made by the remonstrance for cause, or to remand said proceedings to the board of commissioners for trial thereon, proceeded to hear evidence in support of such application, refusing to permit the appellants to cross-examine the witnesses introduced by appellee, or to offer evidence relative thereto, and rendered judgment granting a license as prayed. It was agreed that there were 584 votes cast for Secretary of State in said township at the last preceding general election. Appellants filed their motion for a new trial, which was overruled.
The propriety of the action of the court in striking out said names must be determined with reference to the following facts: The persons whose names were written on said remonstrance had prior thereto separately executed instruments, of which the following is a copy of one, and sample of all, to wit: At the time said remonstrance was prepared, said Wilson was afflicted with erysipelas in his right hand. He caused the 341 names aforesaid to be written on the remonstrance by a typewriting machine, which was done in his presence and under his supervision, and by a person operating said machine.
It is contended in support of the action of the trial court in striking out said names, first, “that, in all cases where the signature of any person is required by law, the proper handwriting of such person, or his mark, is required”; second, that the authority so conferred upon said Wilson was not one which could be redelegated by him....
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