Ellis v. State ex rel. Myers
| Decision Date | 27 October 1915 |
| Docket Number | 22,694 |
| Parties | Ellis, Treasurer, v. State of Indiana, ex rel. Myers |
| Court | Indiana Supreme Court |
From Hancock Circuit Court; Earl Sample, Judge.
Action in mandamus by the State of Indiana, on the relation of Ora Myers, against David H. Ellis, Treasurer of the City of Greenfield. From a judgment for relator, the defendant appeals.
Affirmed.
Robert F. Reeves and Arthur Van Duyn, for appellant.
William A. Hough, for appellee.
This was an action for mandate to compel appellant, as treasurer of the city of Greenfield, to pay two certain warrants issued by said city to relator, appellee, in payment of salary for the months of December, 1911, and January, 1912. Separate complaints were originally filed on each warrant, but by agreement of parties the two were consolidated. Demurrers were addressed to each complaint and overruled. An answer was filed in three paragraphs. The court sustained a demurrer to the second. The issues were closed by a reply in general denial to the third paragraph of answer. Trial was had by the court and upon proper and timely request made special findings of facts and stated conclusions of law thereon. The same questions are presented by exceptions to the conclusions of law as are raised by the demurrers to the complaint and second paragraph of answer; hence we omit the pleadings.
The findings of the court are as follows: (1) The relator herein Ora Myers, at a city election held on November 2, 1909, for the election of city officers of the city of Greenfield was duly elected mayor of said city and thereafter took the oath of office, qualified as such mayor, and on January 3, 1910 entered upon his duties as such mayor of said city and for four years succeeding January 3, 1910, was the duly elected qualified and acting mayor of the city of Greenfield. (2) That the city of Greenfield, Indiana, is a city of the fifth class as designated by the statutes of the State of Indiana. (3) That at said city election appellant, David Ellis was the duly elected city treasurer of said city of Greenfield and afterwards on November 9, 1909, duly qualified as such treasurer and filed his bond in the sum of $ 20,000 which bond was duly approved by said city and said Ellis thereafter on January 3, 1910, entered upon his duties as such treasurer, since which time he has been and is now duly elected, qualified and acting treasurer of the city of Greenfield, Indiana. (4) That the relator herein, by virtue of his office as mayor, acted as city judge in the city court of said city of Greenfield, Indiana. That said relator never at any time during the time he was acting as mayor of said city and as judge of the city court, executed any bond or undertaking for the faithful performance of his duties. (5) That on June 21, 1905, the common council of said city of Greenfield, by an ordinance duly passed, fixed the salary of the mayor of said city at the sum of $ 750 per annum, payable monthly at the rate of $ 62.50 per month, which ordinance, since its passage, has been and still is in full force and effect. (6) That on July 6, 1911, the relator herein while acting as mayor of the city of Greenfield, departed from said city and from the State of Indiana and went to the state of Michigan and remained there for a period of forty-eight days and that said relator was not absent from the duties of said office and from the State upon any business connected with his said office, nor by reason of sickness or ill-health, but was so absent voluntarily and upon a pleasure trip to the state of Michigan. (7) That prior to so absenting himself, the relator herein appointed William A. Hughes as special judge of the city court of said city of Greenfield, Indiana, and during said absence of said relator the said Hughes so acted in such capacity and was paid by said city for his services the sum of $ 160 by a warrant drawn on said city, duly allowed by the common council, which payment was so made on December 22, 1911. (8) That during the month of December, 1911, said Ora Myers, the relator herein, performed all of his duties as mayor of said city of Greenfield, Indiana, and on January 3, 1912, said city was indebted to said Myers for his services as such mayor during the month of December, 1911, in the sum of $ 62.50, which sum on January 3, 1912, was duly allowed to said Myers by the common council of said city. (9) That on January 4, 1912, an order or warrant duly signed by the mayor of said city and the clerk of said city, Oscar O. Beaver, was issued and delivered to said relator, Ora Myers, directed to appellant, David Ellis, treasurer of the city of Greenfield, which order or warrant was by the relator herein, on February 19, 1912, presented to David Ellis, the then treasurer, who refused to pay said warrant or endorse the same as payable at any bank which was a depository for the said city of Greenfield and did not endorse upon said warrant "Not paid for want of funds". (10) The said order or warrant was drawn upon and payable out of the corporation fund of said city, in which fund there were on January 5, 1912, and...
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