City of Huntington v. Boyd

• Decision Date: 29 June 1900
• Docket Number: 3,114
• Citation: 57 N.E. 939,25 Ind.App. 250
• Parties: CITY OF HUNTINGTON v. BOYD
• Court: Indiana Appellate Court

57 N.E. 939

25 Ind.App. 250

CITY OF HUNTINGTON v. BOYD

No. 3,114

Court of Appeals of Indiana

June 29, 1900

From the Huntington Circuit Court.

Affirmed.

J. F France and Z. T. Dungan, for appellant.

M. L Spencer and J. S. Branyan, for appellee.

OPINION

ROBINSON, C. J.

Appellee 's complaint avers that on July 1, 1897, he was appointed to the office of patrolman for appellant by the board of metropolitan police commissioners of appellant, "then and there duly appointed, organized, and acting as such under and in pursuance of the laws providing for such board," at a salary of $ 550 per year; that he entered upon such employment and discharged the duties thereof for six months and six days when with the consent of his superiors he retired from the service; that the service was accepted by appellant as rendered, was of the value of the salary fixed, and that such salary to the amount of $ 285 is due and unpaid.

The first and second assignments of error question the sufficiency of the complaint. It is argued that there is no averment that the board was a legally constituted one but that it is only averred that the board was acting as such. But the averment is that appellee became such officer through appointment by a board then and there duly appointed, organized and acting as such pursuant to the laws providing for such board. The demurrer admits that the board appointing appellee was duly appointed and organized. Much of appellant's argument upon the complaint is directed to a question not presented by a demurrer for want of facts, but could be raised only by answer. If it be the fact that there was no such office to fill, and that therefore appellee was not such officer, this could be raised by answer, and not by demurrer or an assignment of error that the complaint does not state sufficient facts. The demurrer to the complaint was properly overruled. See Reubelt v. School Town, etc., 106 Ind. 478, 7 N.E. 206; School Town, etc., v. Powner, 126 Ind. 528, 26 N.E. 484; Acts 1897, p. 90.

Appellant answered in four paragraphs. The first was the general denial. A demurrer was sustained to the second paragraph, and this ruling is assigned as error. But this paragraph does not confess and avoid the complaint. Its allegations are to the effect that appellee was never appointed an officer of appellant; that he was at no time such officer; that appellant never agreed to pay him for any services, and notified him when he began the services that appellant would not be responsible for his pay and that he never performed such...