Auken v. Hook

• Decision Date: 10 May 1893
• Docket Number: 850
• Parties: VAN AUKEN v. HOOK ET AL
• Court: Indiana Appellate Court

34 N.E. 104

6 Ind.App. 610

VAN AUKEN v. HOOK ET AL

No. 850

Court of Appeals of Indiana

May 10, 1893

From the Noble Circuit Court.

Judgment affirmed.

H. G Zimmerman, J. A. Woodhull and W. Brown, for appellant.

W. L Penfield, for appellees.

ROSS J. DAVIS, J., concurs.

OPINION

ROSS, J.

This is an appeal from separate allowances made by the board of commissioners of Dekalb county, Indiana, to the appellees, seven in number.

At the September term, 1891, of the commissioners court, each of the appellees filed a separate account against Dekalb county for services rendered, at the instance of the board of commissioners, on public ditches in said county, which accounts were duly allowed by said board at said term. Several days after the allowance of said claims, the appellant filed with the auditor of Dekalb county his affidavit, in which he deposed that he was a taxpayer of Dekalb county, and as such was interested in all orders made by the board of commissioners of said county, taking money out of the county treasury. That as such taxpayer he was interested in and aggrieved by the order of the board allowing said claims. He prayed an appeal from the order of the board to the Dekalb Circuit Court, and filed an appeal bond in the sum of one hundred dollars, which was approved by the auditor.

In the circuit court the appellees appeared specially, and separately moved to dismiss the appeal for the reason that said appeal was without authority of law, and without sufficient affidavit and bond, and for the further reason that each claim was a separate and distinct claim against Dekalb county. These motions were overruled by the court, and thereupon each of the appellees filed his separate motion and affidavit for change of venue from the county, which was granted, and the cause sent to the Noble Circuit Court.

In the Noble Circuit Court, the appellees each filed his separate motion to separate and docket separately each of their said claims, and also filed their separate motions to dismiss said appeal, both of which motions were sustained by the court, to which rulings the appellant excepted, and these rulings are the basis for the errors assigned in this court.

Section 5772, R. S. 1881, provides that "From any decision of such commissioners there shall be allowed an appeal to the circuit court by any person aggrieved; but if such person shall not be a party to the proceeding, such appeal shall not be allowed, unless he shall file, in the office of the county auditor, his affidavit, setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicitly the nature of his interest."

And section 5773 provides: "Such appeal shall be taken within thirty days after the time such decision was made, by the appellant filing with the county auditor a bond, with sufficient penalty and sureties, to be approved by said auditor,...