Braden v. Liebenguth

• Decision Date: 22 November 1890
• Citation: 25 N.E. 899,126 Ind. 336
• Parties: Braden v. Liebenguth, Trustee, etc.
• Court: Indiana Supreme Court

126 Ind. 336

25 N.E. 899

Braden

v.Liebenguth, Trustee, etc.¹

Supreme Court of Indiana.

Nov. 22, 1890.

Appeal from circuit court, Clinton county; A. E. Paige, Judge.

F. F. Moore, for appellant. James V. Kent, for appellee.

Olds, J.

This action in the circuit court was entitled “William M. Braden against James M. Liebenguth,” but it was disclosed by the facts alleged in the complaint that it was a proceeding to enjoin said Liebenguth, as school trustee of Washington township, in Clinton county, from erecting a school-house upon ground condemned and paid for by his predecessor in office; which proceeding to condemn the site for school-house was, by said Braden, appealed to this court, (Braden v. McNutt, 114 Ind. 214, 16 N. E. Rep. 170,) and the judgment affirmed. Liebenguth became the successor of McNutt, and adopted the site so selected and condemned by McNutt, trustee, and was proceeding to erect a school-house thereon when these proceedings were commenced to enjoin him. We have looked into the record, and a proper conclusion seems to have been reached. It is urged by the appellee that no question is presented by the assignment of error for the reason that error is not properly assigned, or assigned in the proper cause; that is to say, the judgment appealed from was rendered in the cause of William M. Braden against James M. Liebenguth, or, if it can be construed to be a judgment in a case wherein Liebenguth was sued in any official capacity, it was as school trustee of the school township; and the cause is entitled in this court and error assigned as a case against him as trustee of the civil township. We have, in this state, two distinct legal municipal township corporations, in the same territorial subdivision, represented by one and the same person. The trustee represents the two corporations,-the civil and the school township,-and it will not do to sue a trustee in his capacity of school trustee of his township, and appeal, and assign error against him as trustee of the civil township; or, to remove the parties, a trustee cannot bring suit in the circuit court as school trustee, and, if judgment be rendered against him, appeal and assign error in the capacity of trustee of the civil township. The two corporations have as distinct and separate existence in law as regards their rights and liability to sue and be sued as if they were two separate territorial subdivisions, or two distinct persons or corporations, though they are represented by the same officer. The trustee may be liable in one capacity, and not in the other. One corporation he...