Eley v. Miller

• Citation: 7 Ind.App. 529, 34 N.E. 836
• Case Date: September 29, 1893
• Court: Court of Appeals of Indiana

7 Ind.App. 529
34 N.E. 836

ELEY
v.
MILLER, County Auditor.

Appellate Court of Indiana.

Sept. 29, 1893.

Appeal from circuit court, Adams county; W. H. Carroll, Judge.

Action by David Eley against Lewis C. Miller to recover back the amount of certain illegal charges made by and paid to defendant, as auditor of Adams county. Judgment for defendant. Plaintiff appeals.

La Follette & Adair, for appellant. France & Merryman, for appellee.

LOTZ, J.

The appellant was the plaintiff in the court below. In his complaint he charged that he was a resident taxpayer and owner of real estate in Adams county, Ind., and that the appellee was the duly-qualified and acting auditor of said county; that, while appellee was acting as such auditor, certain public ditches were established under and by virtue of the drainage laws then in force, one of which was known as the “William Miller Ditch;” that of the costs of such proceeding the appellee taxed and collected of appellant the sum of $4.75 more than he was entitled to receive, and also added the sum of $1.50 thereto, which he also collected of appellant. There are other similar allegations with reference to another proceeding, known as the “Frederick Hahnet Ditch,” in which the amount of fees charged to have been illegally collected is stated as $2.20, with the further sum of $1.50 added thereto. It is also alleged that all fees, costs, and moneys so collected were excessive, extortionate, wrongful, and without authority of law; that appellant made demand of appellee to refund the same, but that he refused so to do. The appellee answered: (1) The general denial; and (2) specially setting out and itemizing the various charges for services. The court overruled a demurrer to the second paragraph, and appellant then replied in denial. There was a trial by the court, and, at the request of the appellant, the court made a special finding of the facts, and stated the conclusions of law thereon. Appellant excepted to the conclusions of law. The errors assigned are (1) the overruling the demurrer to the second paragraph of the answer; and (2) that the court erred in its conclusions of law. The gravamen of the action as made by the complaint is the illegal collection of certain fees and moneys. The second paragraph of the answer sought to show that such fees and charges were legal. It is only an argumentative denial. There is no available error in overruling the demurrer to it. The special findings show, in brief, that, in the year of 1890, William Miller and others filed their petition for the location of a public ditch in the auditor's office of Adams county, and with the appellant, who was the auditor of said county. That said petition was presented to the board of commissioners of said county. That said board appointed viewers, and that said viewers made their report to said board, and that said board approved the report of said viewers, and ordered that said ditch be constructed. That all such proceedings were regular and according to law; that the appellant, as the auditor of said county, taxed in said proceedings the following costs therein, to wit: Approving and recording bond, $1; recording petition and order of board, $1.50; certified petition and order of board, $2; recording report, $3.50; advertising, $2.50; copy of record, $2. That said costs were by the viewers afterwards duly apportioned among all the landowners according to their respective interests and assessment for benefits therein. That the amount apportioned to plaintiff as his share therein was $8.12, of which the appellee received as his own costs the sum of $4.75. That afterwards the appellee, as such auditor, sold the allotments of work on said ditch as required by law. That the appellant became a purchaser of one allotment at said sale. That appellee, as such auditor, contracted in writing with the appellant to complete the allotment so bid off by him, and in accordance with the plans and specifications of the same. That the appellee did individually, and not as such auditor and officer, make and write for said appellant the said contract and bond, and did exact of and from him the sum of $1.50, and did not exact and take the same as costs in said cause, but simply exacted the same as a remuneration for his work and labor in preparing

[34 N.E. 837]

the same. That the labor in preparing the same was reasonably worth the sum of $1.50. The findings with reference to the Hahnet ditch are similar, except as to the amount of costs taxed and money collected,...