Cicero Tp. v. Picken

• Decision Date: 21 February 1890
• Citation: 23 N.E. 763,122 Ind. 260
• Parties: Cicero Tp. v. Picken et al.
• Court: Indiana Supreme Court

122 Ind. 260

23 N.E. 763

Cicero Tp.

v.Picken et al.

Supreme Court of Indiana.

Feb. 21, 1890.

Appeal from circuit court, Tipton county; Thomas P. Davis, Judge.

W. R. Oglebay and C. N. Pollard for appellant. James N. Waugh and John C. Kemp, for appellees.

Berkshire, J.

The second paragraph of the complaint, which is the only paragraph brought to this court, was filed by the appellant, who was the plaintiff below, on the 13th day of September, 1889. The substance of this paragraph of complaint is that on the 7th day of April, 1884, one Henry C. Finney was duly elected to the office of township trustee of said Cicero township, and was duly inducted into office, and was again duly elected on the 5th day of April, 1886, and was duly inducted into office, and continued as such trustee until the 13th day of April, 1888; that while in said office the said Finney, as such trustee, executed certain written pretended evidences of indebtedness against said township, and certain pretended written obligations of the said township, to pay certain sums of money at times in said writings named, the amount of said obligations, when due, to whom payable, and when dated being given; that all of said pretended evidences of indebtedness were assigned by indorsement to the appellees, except one, which has no indorsement upon it; that on the 14th day of December, 1887, the appellees filed a complaint in the office of the clerk of the Tipton circuit court against said township, (the appellant,) based exclusively upon said pretended written obligations, but at no time caused any summons to issue upon said complaint; that on the 19th day of December, 1887, an appearance was entered to said action in the name of Gifford and Fippen, as attorneys for the appellant, and an answer filed admitting the legality of the appellee's claim in said cause, except as to interest in excess of 6 per cent. and attorney's fees claimed, and made no other issue therein; that the said Gifford was then one of the sureties on the official bond of said Finney, trustee as aforesaid, and was said surety during his entire term of office, and was such surety at the time he appeared to said action; that the said Finney was then, and has since been, wholly insolvent; that the said Gifford was then, as such surety, liable for every default of said trustee; that on the 24th day of December, 1887, the appellees procured a judgment to be rendered on their said claim in said action against the appellant for the sum of $2,496.95 with costs of suit, which still remains in force upon the records of said court, and is still owned and controlled by the appellees; that said judgment is null and void, in this: that said supposed debts, and each and all of them, were, when contracted by said trustee, in excess of the fund then in the hands of said trustee to which said indebtedness was chargeable, and in excess of the funds to which said debts were chargeable, to be derived from the tax assessed against said township for the proper year; that the said trustee did not at any time procure an order from the board of commissioners authorizing him to contract such indebtedness, or any part of it; that said supposed indebtedness was contracted in violation of sections 6006, 6007, Rev. St. 1881; that said apparent indebtedness was a fraud upon the appellant; that one Harrison A. Woodruff was duly elected and inductedinto office as the successor of said Henry C. Finney, and is now filling said office, and has procured this suit to be instituted to have the appellant relieved from said judgment; that he instituted this suit as soon as he discovered the facts herein alleged, or could have done, in the exercise of reasonable diligence. There is then a prayer that said judgment be set aside, and that the appellant be allowed to defend the said former action. The court sustained a demurrer to the said second paragraph of complaint, and to the ruling of the court an exception was reserved. The appellant having refused to amend its complaint, judgment was rendered against it for want of a sufficient complaint, and from that judgment this appeal is taken.

The only question raised by the assignment of error is as to the sufficiency of the said paragraph of complaint. It is not claimed by counsel for the appellant that the cause of action alleged, brings the case within any of the statutory provisions for relief against judgments. The theory of the complaint is that the equity powers of the...