Etzold v. Bd. of Com'rs of Huntington Cnty.

Decision Date19 February 1925
Docket NumberNo. 11440.,11440.
PartiesETZOLD v. BOARD OF COM'RS OF HUNTINGTON COUNTY.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Adams County; R. H. Hartford, Judge.

Action by John C. Etzold against the Board of Commissioners of Huntington County. Judgment for defendant, and plaintiff appeals. Affirmed.

Superseding former opinion in 141 N. E. 617.

This action was instituted by John C. Etzold against the board of commissioners of Huntington county to recover compensation for services rendered as reporter of the Huntington circuit court. It is averred in the complaint that the plaintiff was the official reporter of the court from May 28, 1904, to February 15, 1915. The bill of particulars, filed with and made a part of the complaint, discloses the payments he received from time to time and the balance which he avers is due and unpaid. Relating to the days for which he received no compensation, as shown by the bill of particulars, the averments of the complaint are that-

He was required by the judge of the Huntington circuit court to attend, and did attend, said court as official court reporter 1,068 days, for which days he has not received any compensation, and that he has demanded compensation for such days so required of him to be in attendance but the judge of the court refused to make allowance or to certify such attendance to the auditor or treasurer of the county for payment, and no part thereof has ever been paid.”

The special finding discloses the following facts:

Hon. James C. Branyan was judge of the Huntington circuit court from (and prior to) May 21, 1904, to November 10, 1906, and on the last-named date he was succeeded by Hon. Samuel E. Cook, who served in that capacity until some time after February 15, 1915.

The plaintiff was appointed official reporter of the court on May 28, 1904, by Hon. James C. Branyan, judge thereof, and at that time his compensation was fixed at $5 for each day when required by the judge to be in attendance upon the court. He accepted the appointment and discharged the duties of reporter under that order continuously until February 15, 1915.

The appropriation for the payment of the reporter's compensation was $1,200 for each year of his period of service.

From the date of his appointment to November 10, 1906, Judge Branyan required the reporter to be in attendance upon the court every day the court was in session, but allowed him compensation at the rate of $5 per day for such days only as he reported cases or did other work under the direction of the judge; and, if the reporter actually worked one-half day or less on any calendar day, the judge allowed him only half compensation at the rate fixed.

On April 25, 1907, the plaintiff filed in said court his claim for unpaid services rendered prior to November 10, 1906. That claim was submitted to Hon. B. H. Hurd, special judge, for trial. The trial resulted in an allowance of $80 on the claim. Prior to the commencement of this action, the plaintiff was paid for his services rendered prior to November 10, 1906, the sum of $1,826.50.

From November 10, 1906, to February 15, 1915, the plaintiff was required by Judge Cook to be, and he was, in attendance upon the court 1,053 days, for which he was allowed and paid compensation in the sum of $5,265. Between the last two dates he was also actually present in court, and ready to discharge any official duty which might arise, 819 days when his attendance upon the court was not required by the judge, but his presence on those days was voluntary.

The various allowances were made at short intervals, usually at intervals of one week. Each allowance was in full of all compensation due him for services since the last preceding allowance, and the amount of each allowance was paid to and accepted by him as full payment and satisfaction of all compensation due him to the date thereof.

Whenever an allowance was made for a less sum than the plaintiff believed himself entitled to receive under the law and the facts, he protested. Much friction and ill feeling was engendered by the numerous controversies between him and the judge concerning the allowances. When such controversies arose, he was told by the judge that he was being allowed all that was due him and that, if he was not satisfied with the amount of his allowances, he could quit. When he presented to Judge Branyan claims for compensation in larger sums than the judge was willing to allow, he was told by the judge that, if he did not stop presenting claims for compensation for days on which he did not report any case, he would be discharged. He always submitted to the action of the judge in making the allowances, reserved no exceptions thereto, and accepted the allowances, and received the amounts thereof in payment of his compensation.

Before the commencement of this action the plaintiff requested the judge of the Huntington circuit court to make him an allowance for the amount claimed in his complaint, to be paid from the county treasury, which request the judge refused. Thereupon he filed his claim for allowance by the board of commissioners, where it was disallowed, and this action was commenced March 3, 1916.

That 563 of the days for which the plaintiff claims compensation were prior to March 3, 1910, and to that extent his cause of action accrued more than six years before the commencement of his action.

That the plaintiff's cause of action was fully paid before the commencement of this action.”

The conclusions of law are (1) that the plaintiff is not entitled to recover, and (2) that the defendant is entitled to recover costs. Judgment accordingly.

The assignment of errors challenges the action of the court in overruling the demurrer to the eighth paragraph of answer, in overruling the motion for a new trial, and in stating each conclusion of law.

Charles K. Lucas, of Huntington, George A. Yopst, of Wabash, and Merryman & Sutton, of Decatur, for appellant.

Claude Cline, of Huntington, John C. Moran, of Decatur, and M. J. O'Malley, of Huntington, for appellee.

DAUSMAN, C. J. (after stating the facts as above).

Since the facts have been found specially and conclusions of law have been stated thereon, the ruling on the demurrer need not be discussed.

[1] The evidence tends fairly to sustain the finding of facts in all respects, unless it be as to the particular finding that the plaintiff's cause of action had been paid. That particular finding requires special consideration.

It should be specially noted that the bill of particulars concedes that numerous payments were made to the plaintiff. Concerning those payments there is no controversy. His action is to recover the compensation alleged to be due him in excess of those payments, and therefore his cause of action is his claim that he is entitled to compensation over and above the amounts which by his complaint he admits were actually paid him. Was that cause of action extinguished by payment?

Some of the statements in the special finding relating to this point, are mere recitals of evidential facts. The evidence bearing upon the question of payment is harmonious. Without the slightest conflict it shows that from time to time the plaintiff presented to the judge for allowance verified itemized statements of his claims for compensation; that frequently the statements included days for which, in the opinion of the judge, he was not entitled to compensation; that, upon inspection, the judge invariably refused to allow compensation for those days, struck them out of the statement, and allowed for the remaining days only; that, although often told that if he was not satisfied with the allowances he could quit, and although Judge Branyan often threatened to discharge him if he did not desist from the practice of including in the statements of his claims days on which he did no actual work he would be discharged, nevertheless he did not resign, neither was he discharged; that he continued to present claims for allowance which included days for which the judge refused to allow compensation; that he also filed numerous claims for allowance from which he omitted days for which he believed he was entitled to compensation, which omissions were for the reason that he knew it would be useless to include them; that he invariably accepted the allowances, although for less amounts than he claimed, and received from the county treasurer the sums designated in the allowances; that for a foundation for this action he went back through the years and counted the juridical days on...

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1 cases
  • State v. Wheeler
    • United States
    • Washington Supreme Court
    • February 7, 1928
    ... ... of a mere accountant.' Etzold v. Board of ... Commissioners, 82 Ind.App. 655, 146 N.E. 842 ... ...

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