Board of Commissioners of Randolph County v. Board of Commissioners of Henry County

• Decision Date: 09 October 1901
• Docket Number: 3,894
• Citation: 61 N.E. 612,27 Ind.App. 378
• Parties: BOARD OF COMMISSIONERS OF RANDOLPH COUNTY v. BOARD OF COMMISSIONERS OF HENRY COUNTY
• Court: Indiana Appellate Court

61 N.E. 612

27 Ind.App. 378

BOARD OF COMMISSIONERS OF RANDOLPH COUNTY v. BOARD OF COMMISSIONERS OF HENRY COUNTY

No. 3,894

Court of Appeals of Indiana

October 9, 1901

From Delaware Circuit Court; George H. Koons, Judge.

The board of commissioners of Randolph county allowed only a part of a claim filed by Henry county for costs of trial on change of venue to the latter county. From a judgment of the circuit court allowing a larger amount, the board of commissioners of Randolph county appeals.

Reversed.

J. W Thompson, for appellant.

Adolph Rogers, for appellee.

OPINION

BLACK, C. J.

In this cause, which was transferred to this court from the Supreme Court, the venue was changed to the court below from the Randolph Circuit Court, to which it had gone by appeal from the board of commissioners of Randolph county. It is stated in the transcript of the proceedings before this board filed in the Randolph Circuit Court, that Henry county, by her auditor, filed her claim for $ 512, for costs of change of venue in the case of Albert F. Huddleston v. Cleveland, Cincinnati and St. Louis Railway Company, an itemized "statement of claim and account," with an appended statement or certificate signed by the judge of the Henry Circuit Court, being set out, constituting the complaint herein. The statement or certificate of the judge was to the effect that he had examined the foregoing account in favor of Henry county against Randolph county and had heard evidence concerning the same, and being advised as to the law in reference thereto, it was by him ordered and adjudged that the account was in all things correct "and the amount thereof, to wit, $ 512, in the case of Albert F. Huddleston v. Cleveland, etc., R. Co., is now audited and allowed as a just and proper claim in favor of said county of Henry and against said county of Randolph, in said State, and the auditor of said county of Randolph is hereby ordered and directed to issue his warrant upon the treasurer of said county of Randolph, in said State, in favor of said county of Henry, and this shall be his sufficient voucher and authority for so doing;" the certificate of the judge being followed by a certificate of the clerk of the Henry Circuit Court signed by him, with the seal of that court affixed, authenticating the signature of the judge. The board of commissioners of Randolph county allowed the claim in part, to the amount of $ 175, from which decision the board of commissioners of Henry county appealed.

In the court below, the defendant, the appellant here, appeared specially and moved "to dismiss this appeal, and the pretended appeal in the above cause, and to dismiss this cause, and to strike the cause from the docket, and to strike out and reject said cause and the said pretended cause and the said pretended appeal." This motion having been overruled, the cause was tried by the court, and upon request of the parties a special finding was rendered. The appellant excepted to the conclusions of law and to each of them.

The appellant has assigned as errors: "(1) The statement claim, and complaint of the appellee does not state facts sufficient to constitute a cause of action against the appellant; (2) the court erred in overruling the appellant's motion to dismiss the said statement, claim, and cause of action; (3) the court erred in the conclusions of law stated upon the special finding of facts; (4) the court erred in each of the conclusions of law, separately and severally, stated upon the special finding of facts."

The motion which the court overruled was broader in its scope than the specification of error relating to that motion; but counsel have discussed the first and second specifications of error together as presenting the same subject, making no question, under these specifications, as to the liability of Randolph county, but questioning "the method of allowance and payment, the meaning and purpose of" the statute relating to expenses incurred in civil cases by one county in consequence of a change of venue in a cause thereto from another county, being § 418 Burns 1901, § 414 R. S. 1881, as follows: "In all cases where there has been or shall be a change of venue from one county to another, the county from which the change of venue shall have been or shall be taken shall be liable to pay to the county to which such change shall have been or shall be taken all such expenses as shall have been or shall be incurred by such county to which such change shall have been or shall be taken, in consequence of such change, and in all cases, the fees paid by such county to the jury trying the case, and any of the regular panel not engaged in such trial, allowance to bailiffs, and all other expenses necessarily incurred by such county, and consequent upon such change of venue and the trial of such cause. Such expenses shall be audited and allowed by the court to which such cases shall have been changed; and such court shall certify such allowance to the auditor of the county from which the change of venue was first taken; and such auditor shall issue his warrant on the treasurer of the county for the amount so allowed and certified."

The section set out as above in the revised statutes of 1881 contains the provisions of an act of 1873 so far as the same related to civil causes, and remains in force as to such cases, not repealed by the repealing section, § 1291 of the civil code of 1881. See State, ex rel., v. Moore, 121 Ind. 116, 22 N.E. 742.

The argument of counsel under the first and second specifications of error relates, not to the character of the expenses which may be audited and allowed and certified, under the first portion of this section of the statute, but to the proper construction and application of the latter portion of the section; and it is claimed on behalf of the appellant that the auditor of Randolph county had no authority to refer the claim in question to the board of commissioners of his county, and that the action of the board of commissioners upon the claim was in no way binding upon the auditor or upon Henry county, the position of the appellant being, as we understand counsel, that the auditor was bound either to allow the claim as audited and allowed by the court to which the change of venue was taken or to reject it wholly, and that upon such rejection by the auditor the only proper remedy of Henry county would be by mandate against the auditor of Randolph county. Counsel, admitting that there are no provisions in the statute for notice to the county from which the venue was changed, concedes that it is not certain how far the auditing and the allowance are binding, and says that these are matters for the auditor to determine, if he choose to refuse to draw his warrant.

It is provided concerning the expenses in criminal causes in which the venue has been changed (§ 1847 Burns 1901, § 1778 R. S. 1881): "In all changes of venue from the county, the county from which the change was taken shall be liable for the expenses and charges of removing, delivering and keeping the prisoner, and the per diem allowance and expenses of the jury trying the cause, and of the whole panel of jurors in attendance during the trial." The next section of the statute provides: "All costs and charges specified in the last preceding section, or coming justly and equitably within its provisions, shall be audited and allowed by the court trying such cause; but where specific fees are allowed by law for any duty or service, no more or other costs shall be allowed therefor than could be legally taxed in the court from which such change was taken."

Trant v. State, ex rel., 140 Ind. 414, 39 N.E 513, was a proceeding brought by the board of commissioners of Grant county against the auditor of Blackford county, to collect by writ of mandate from the latter county the expense of the trial of a criminal cause, which originated in Blackford county and on change of venue was tried in Grant county. It was said by the court: "The order of the Grant Circuit Court auditing and allowing the costs and charges of the Sage case against Blackford county, and ordering the auditor of said county to draw a warrant on the treasurer of said county for $ 2,443.15 was not final or conclusive. Blackford county was not a party to such proceeding, and the appellant may contest the correctness of the allowance made." The court cited the decision in State, ex rel., v. Snodgrass, 98 Ind. 546, adopting therefrom the following: "The writ of mandate will issue only where there is a clear legal right to the relief demanded. If the right is doubtful, it must first be established by an ordinary action at law, where the right is such as admits of its establishment in that way. A fiscal officer can not, by mandate, be required to pay a claim where any duty is devolved upon him except the mere ministerial act of making payment. The validity of the claim and the amount due must have been definitely ascertained by some competent officer or tribunal, whose decision, while unappealed from or unreversed, is final and conclusive, before its payment can be enforced by mandate. If the officer, whose duty it is to make the payment, must himself, at his own risk, inquire into the validity and the amount of the claim, he may not be compelled by mandate to make payment. He may, for his own protection in such case, require an adjudication of the claim before paying it." The court, in Trant v. State, ex rel., supra, then said: "Under these rules, Grant county must file her claim with the auditor of Blackford county, to be by him presented to the board of county commissioners, as required by" the statute, § 7845 Burns 1894, § 5758 R. S. 1881. It was also said that so far as the case of State, ex rel., v....