City of Terre Haute v. Burns

• Decision Date: 19 June 1917
• Docket Number: No. 9279.,9279.
• Citation: 116 N.E. 604,69 Ind.App. 7
• Parties: CITY OF TERRE HAUTE v. BURNS.
• Court: Indiana Appellate Court

69 Ind.App. 7

116 N.E. 604

CITY OF TERRE HAUTE

v.BURNS.

No. 9279.

Appellate Court of Indiana.

June 19, 1917.

Appeal from Circuit Court, Clay County; John Rawley, Judge.

Suit by Robert M. Burns against the City of Terre Haute. From a judgment for plaintiff, defendant appeals. Judgment reversed, with instructions to the trial court to restate its conclusions of law for defendant, and to render judgment accordingly.

Rehearing denied 117 N. E. 519.George W. Wells, of Terre Haute, and Curtis G. Scofield, of Brazil, for appellant. Davis, Bogart & Royse, of Terre Haute, for appellee.

FELT, J.

Appellee, Robert M. Burns, brought this suit against the city of Terre Haute to recover salary alleged to be due him as civil engineer of said city.

The complaint was in two paragraphs, to which an answer was filed in four paragraphs, the first of which was a general denial. Replies in general denial were filed to the paragraphs of answer other than the first. On request the court made a special finding of facts and stated its conclusions of law thereon which authorized a recovery against the city. Judgment was accordingly rendered for appellee in the sum of $1,479.77, which included $241.10 interest. Appellant excepted to the conclusions of law and to each of them and has assigned error, in substance as follows: Overruling of the separate demurrers to each paragraph of the complaint; error in each of the seven conclusions of law; and error in the conclusions of law.

The facts of the case are stated in the special finding, and all the controlling questions of law are presented by the exceptions to the conclusions of law and the assignments of error based thereon. Appellee contends that no question is presented by the exceptions to the conclusions of law because the parties agreed to the facts. The record does not bear out this contention, but does show that the parties filed with the court a “complete statement of evidence,” and subsequently that “the court now makes and files herein its special finding of facts.” It has been held that exceptions to conclusions of law based on an agreed statement of facts present no question on appeal. Western U. Telegraph Co. v. Frank, 85 Ind. 480;Zeller v. City, etc., 90 Ind. 262.

[1] Evidentiary facts should not be set forth in a special finding, but only the ultimate, issuable facts, inferred and found by the trial court from the evidence should be stated. Eckart v. Ft. Wayne, etc., Co., 181 Ind. 352-355, 104 N. E. 762;Talbott v. English, 156 Ind. 299-315, 59 N. E. 857;Spade v. Hawkins, 60 Ind. App. 388-392, 110 N. E. 1010.

[2] The record indicates that there was no dispute about the evidence, but it does not show any agreement as to the ultimate, issuable facts, but conclusively shows that such facts were found and stated by the court. This is a substantial compliance with the statute. Section 577, Burns 1914; Horn v. Lupton, 182 Ind. 355-361, 105 N. E. 237, 106 N. E. 708.

Omitting formal and unquestioned statements, the finding of facts as far as material is in substance as follows:

That on January 3, 1910, Louis Gerhardt was the duly elected, qualified, and acting mayor of the city of Terre Haute, a city of the second class, under the laws of Indiana. That on said day the mayor aforesaid duly appointed Donn M. Roberts as city civil engineer “of said city until otherwise ordered.” That on said day said Roberts duly qualified and entered upon the discharge of his duties as such engineer, and thereafter held full possession of said office and continued to discharge the duties thereof up to and including the 31st day of March, 1911, on which day said mayor in writing duly notified said Roberts “that I have this day removed you from the office of city civil engineer heretofore held by you, and that you are hereby removed and discharged from such office.” That on said day the mayor delivered to the clerk of said city a notice in writing directed to the common council thereof, in which he stated:

“I have this day removed and discharged Donn M. Roberts from the office of the city civil engineer of the city of Terre Haute, Ind. My reasons for such removal and discharge are the insubordination of such officer, and the general good of the administration of the city's business.”

That thereupon on March 31, 1911, the aforesaid mayor in writing duly appointed Robert M. Burns as city civil engineer of the city of Terre Haute, his term of office to begin on April 1, 1911. That thereupon said Burns duly qualified, gave bond and prepared to enter upon the discharge of the duties of said office. That thereafter on the 31st day of March, 1911, said Roberts filed a complaint in the Vigo circuit court, and made defendants thereto the mayor, members of the board of public works, the chief of police, the city controller and members of the common council of said city, and Robert M. Burns, and asked an injunction against such defendants to prevent them or any of them from removing him from said office or in any way interfering with him in the discharge of the duties thereof. That thereupon on said day the judge of said court granted a temporary restraining order, without notice, against said defendants in accordance with the prayer of said complaint, “until notice and further order” of the court, and set April 10, 1911, as the day on which the application for a temporary injunction would be heard in said suit, and thereafter, pursuant to notice, the judge of said court granted a temporary injunction against all of said defendants as prayed, except John H. Jensen, whereby, among other things, it was ordered and decreed:

“That the defendant, Robert M. Burns, be and he is hereby enjoined and restrained from acting or pretending to act as city civil engineer of the city of Terre Haute, and from intruding or attempting to intrude himself into the office of the said city civil engineer, and from in any way interfering with the exercise of the duties of said city civil engineer by the plaintiff, Donn M. Roberts. It is further ordered, adjudged and decreed by the court that the defendants *** and each of them be and they are and each of them is hereby enjoined and restrained from interfering with the plaintiff, Donn M. Roberts, and his administration of the office of the said city civil engineer of the city of Terre Haute, and they are and each of them is hereby enjoined and restrained from refusing to recognize the plaintiff, Donn M. Roberts, as said city civil engineer of the city of Terre Haute. It is further ordered, adjudged and decreed by the court that this injunction shall be and remain in full force and effect until a final hearing of this case, or until the title of said Robert M. Burns, to the office of said city civil engineer of the city of Terre Haute, shall be determined by proper legal proceedings.”

The court also found that by successive changes of venue the case reached the Knox circuit court, where on November 13, 1911, the temporary injunction was dissolved, and a final judgment rendered for the defendants; that no appeal was taken from such judgment; that from the 1st day of April, 1911, to November 13, 1911, said Roberts retained possession of the office of city civil engineer aforesaid and performed the duties thereof and received from the city the salary attached to the office; that from the 1st day of April, 1911, to November 13, 1911, plaintiff was ready and willing to perform the duties of the city civil engineer aforesaid, and at all times held himself in readiness so to do; that in obedience to the restraining order and temporary injunction aforesaid he did not attempt to take possession of said office until November 13, 1911, nor to perform the duties thereof until that date; that during the time said temporary injunction was in effect he did not seek other employment for the reason that he did not know when the same would be dissolved; that the salary of said office is $2,000 per year; that plaintiff received no salary from said city as such city civil engineer for the time from April 1 to November 13, 1911; that during said period of time the officers of said city were ready and willing to recognize plaintiff as said city civil engineer, and to pay him the salary attached to the office, but did not do so because of the temporary injunction aforesaid.

The court stated its conclusions of law in substance as follows: (1) That from April 1, 1911, to November 13, 1911, plaintiff, Robert M. Burns, was the de jure city civil engineer of the city of Terre Haute. (2) That during said time Donn M. Roberts was not the de facto city civil engineer of the city of Terre Haute, but was an intruder in said office. (3) That the salary of Robert M. Burns for the aforesaid period is $1,166.66. (4) That plaintiff, Robert M. Burns, is entitled to interest on said salary in the sum of $241.10. (5) That he is entitled to judgment against the city of Terre Haute for $1,479.77.

The appellants claim that the court erred in its conclusions of law, because the facts found show that during the period for which salary was awarded appellee, the possession of and title to the office of city civil engineer of the city of Terre Haute were in dispute, the subject of legal controversy, and the same were claimed by both appellee and Donn M. Roberts; that under such conditions a suit to recover the salary attached to a public office will not lie, and the same cannot be maintained until the title to such office has been duly determined by quo warranto proceedings; that the salary of an office is an incident thereto and belongs to the officer actually holding the position; that a de jure officer who is illegally kept out of his office cannot recover the salary incident thereto until his right to such office has been judicially established.

Appellee contends in substance that after Donn M. Roberts was removed from office by the mayor, he was not the de facto city civil engineer; that the term of his office...