Board of Comm'rs of LaGrange County v. Cutler
| Decision Date | 26 November 1855 |
| Citation | 7 Ind. 5 |
| Parties | The Board of Commissioners of LaGrange County v. Cutler |
| Court | Indiana Supreme Court |
From the LaGrange Circuit Court.
The judgment is reversed with costs. Cause remanded, with instructions to allow the parties to amend their pleadings.
A Ellison, for appellant.
J. B Howe, for appellee.
Cutler applied to the LaGrange Circuit Court, at the April term 1853, for a rule against the appellants, requiring them to enter a judgment upon a claim which he had presented for services previously rendered as auditor of the county, or to show cause to the contrary at the next term. This was intended, no doubt, as a rule to show cause why a writ of mandamus should not issue, requiring them, &c. An affidavit, made by Frazier, the appellee's counsel, which was the foundation of the proceeding, stated the filing in the auditor's office of the plaintiff's claim; that it was presented to the board of commissioners, at their December term, 1852, and that they refused to allow it; whereupon he tendered a bond, and prayed an appeal from their decision to the LaGrange Circuit Court, and that the board refused to take any further action in the matter; that one of the commissioners directed him to leave said bond with the clerk, (who was ex officio auditor); that said clerk received the bond and filed it with the papers in the cause. There was a prayer that the board of commissioners be directed to enter up a judgment on said claim, or show cause to the contrary, and send up to the Circuit Court a transcript of their proceedings.
The Circuit Court granted a rule against the defendants, who made return thereto, setting forth as reasons why a peremptory writ of mandamus should not issue against them, first, that they had refused to allow the claim because it was not proved before them, and because Cutler was indebted to the county in a sum larger than his claim, which ought to be set off against it; and that to make the set-off, and properly to dispose of the whole matter between Cutler and the county, was an act which the board was unwilling to do, because they doubted whether they had full power, as a Court, to take cognizance of such questions; and, secondly, that before the rule was served upon them, the said cause had been taken to the LaGrange Circuit Court by appeal; that it had not been returned to them, and the cause not being before them, they could give no judgment upon it.
Cutler demurred to the answer, and assigned for cause, that the return showed...
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