Bd. of Com'rs of Morgan Cnty. v. Crone

• Decision Date: 12 October 1905
• Docket Number: No. 5,666.,5,666.
• Citation: 75 N.E. 826,36 Ind.App. 283
• Parties: BOARD OF COM'RS OF MORGAN COUNTY v. CRONE.
• Court: Indiana Appellate Court

36 Ind.App. 283

75 N.E. 826

BOARD OF COM'RS OF MORGAN COUNTY

v.CRONE.

No. 5,666.

Appellate Court of Indiana, Division No. 2.

Oct. 12, 1905.

Appeal from Circuit Court, Morgan County; Joseph W. Williams, Judge pro tem.

Action by William R. Crone against the board of commissioners of Morgan county. From a judgment for plaintiff, defendant appeals. Affirmed.

O. Matthews, R. C. Minton, and S. C. Kevett, for appellant. E. F. Branch and G. W. Grubbs, for appellee.

WILEY, C. J.

The questions presented by this appeal arise upon rulings on demurrers to the pleadings. Appellee was plaintiff below, and his complaint as it comes to us is in two paragraphs, to each of which a demurrer for want of facts was overruled. Appellant answered in two paragraphs, the first of which was addressed to the first paragraph of complaint, and the second to the second paragraph thereof. A demurrer to each paragraph of the answer was sustained. Appellant declined to plead further, and appellee recovered judgment as prayed for in his complaint.

Appellant, by its counsel, asserts three propositions, and seeks to uphold them by argument and authorities, to wit: (1) That neither paragraph of complaint states facts sufficient to constitute a cause of action; (2) that each paragraph of answer is good as against a demurrer for want of sufficient facts; and (3) that the demurrer to the answer does not raise any question because of its insufficiency in form. As the same question is presented by the demurrer to the complaint and also the demurrer to the answer, they have been considered together by counsel, and will be so here.

The propositions above stated will be considered in their order.

It is most earnestly contended by counsel for appellee that appellant has so essentially failed to comply with the requirements of rule 22 of this court (55 N. E. v) that it is not entitled to have the merits of the case determined. The fifth clause of that rule requires that appellant's brief shall contain “a concise statement of so much of the record as fully presents every error and exception relied upon, referring to the pages and lines of the transcript.” But little, if any, attempt has been made by counsel for appellant in the preparation of their brief to comply with this requirement, and if we should strictly enforce the rule, for which there is abundant authority and precedent, the judgment would have to be affirmed on the record, or the appeal dismissed. To pursue this course in this case, as in all other cases where a like question is presented, would relieve us of much research and labor, and dispatch the business of the court; and, while we would be fully justified in doing so, we are inclined in this case, on account of the brevity of the record, to waive a strict enforcement of the rule, and go to the merits of the controversy, to the end that the parties may have their respective rights determined.

In his first paragraph of complaint, appellee avers that he was elected sheriff of Morgan county in 1898; that he gave bond and entered upon the duties of his office; that he served as such until November 16, 1900; that as said sheriff it was his duty to attend the sessions of the Morgan circuit court daily, either in person or by deputy, and that he did attend said court during said term 271 days; that he was entitled to, and was allowed by the judge thereof, the sum of $2 per day for such services, aggregating in all $542; that said sum was allowed and paid to him by the treasurer of said county; that, as required by law, he filed with the auditor reports of all moneys received by him as such sheriff from all sources on the first Mondays of December, March, June, and September of each year, including in said reports the amounts so received for his services in attending the sessions of the circuit court; that the money received by him from all sources did not equal the salary as provided by law, and that all sums received by him, including said per diem, did not equal the salary provided by law; that all sums of money received by him for his services as such sheriff, including said sum of $542, were “by mistake and inadvertence applied upon his salary, and treated and adjudged by said defendant, the board of commissioners, as belonging to said county, and was by said county applied to the extent of and upon the salary of plaintiff as such sheriff, as provided by law.” It is then averred that said sum of $542, so allowed to him by the circuit court and paid to him out of the treasury of said county, “did not belong to said county, was not fees of his office required to be paid into the county officers' fund, or to be received and credited upon his salary as allowed by law, but was compensation provided for and allowed to him in addition to his salary provided by law; that the same belonged to him, and was his individual property.” It is further averred that said sum was taken and appropriated by appellant and expended in meeting the general expenses of the county. It is then averred that he filed his claim for said amount with the board of commissioners at its January term, 1904, and that said board refused to allow or pay the same, or any part thereof. The second paragraph of the complaint is in all essential respects like the first, except as to the amounts claimed by appellee, and covers per diem allowances made to him for a second term. The first paragraph of answer admits all of the material averments of the first paragraph of complaint, and concludes with the following averments: “That while acting as such sheriff, he [appellee] was allowed by the Morgan circuit court from time to time, and received, the sum of $542 as his per diem for his attendance in person and by deputy upon the sessions of said court, and that he did from time to time, upon demand of the board of commissioners of said county, turn over his said per diem to the treasurer of said county; that he paid said sum over to the treasurer voluntarily and without protest, believing at the time that he was required so to do by law, and that the said sum of $542, with interest thereon, claimed by said plaintiff, is for his per diem allowance for his attendance upon said circuit court while in session, and for no other reason whatever.” The second paragraph of answer is identical to the first, except that it is addressed to the second paragraph of complaint.

The whole contention of appellant rests upon the single proposition that the complaint shows that the money which appellee is seeking here to recover was paid over by him into the county fund voluntarily, without legal compulsion, with full knowledge of the facts, and in such case there can be no recovery. The question is presented both by the demurrer to the complaint, attacking its sufficiency for want of facts, and the demurrer to the answer. In the answer, as above indicated, the allegation is “that he paid said sum over to the...