Fitch v. City of Lawrenceburg

• Decision Date: 26 January 1938
• Docket Number: No. 15601.,15601.
• Citation: 12 N.E.2d 391,104 Ind.App. 704
• Parties: FITCH v. CITY OF LAWRENCEBURG.
• Court: Indiana Appellate Court

104 Ind.App. 704

12 N.E.2d 391

FITCH

v.CITY OF LAWRENCEBURG.

No. 15601.

Appellate Court of Indiana, in Banc.

January 26, 1938.

Appeal from Dearborn Circuit Court; Wm. D. Ricketts, Judge.

Action by Charles W. Fitch against the City of Lawrenceburg to collect salary allegedly due for services rendered during certain years as county treasurer in connection with the collection of taxes for the city. From a judgment for defendant, plaintiff appeals. In McLeaster v. City of Lawrenceburg, Ind.App., 12 N.E.2d 389, a judgment for defendant in an action to recover salary allegedly due plaintiff as county auditor for services rendered in connection with the computation and collection of taxes during the same years was reversed with instructions to grant the Auditor's motion for a new trial, because record did not show that the trial court took judicial notice of facts that city was a fifth-class city, was the county seat, had had an elected city treasurer, and owned water or lighting utility, so that it was not liable to the auditor under Acts 1921, c. 161, § 1, as the trial court could have done.

Reversed with instructions.Chas. A. Lowe, of Lawrenceburg, and Lemen & Cooper and Arthur D. Cutler, all of Madison, for appellant.

Leyman N. Hayes and Estal G. Bielby, both of Lawrenceburg, for appellee.

KIME, Judge.

Appellant filed his complaint herein against the City of Lawrenceburg, Ind., to collect salary alleged to be due him, totaling $600, under the Acts 1931, c. 161, p. 404. To this complaint appellee answered in general denial. Trial was had, and the court found for appellee and entered judgment that appellant take nothing by his complaint and appellee recover costs. Appellant's motion for new trial containing the grounds that the decision of the court was not sustained by sufficient evidence and was contrary to law was overruled, and this appeal followed; the error assigned being the overruling of the motion for new trial.

All the evidence herein was stipulated with leave retained to introduce further evidence but none was introduced upon trial and the pertinent facts are as follows: Appellant was duly elected as county treasurer of Dearborn county, Ind., and thereafter qualified for such office and entered upon the duties thereof on the 1st day of January, 1931, and ever since has been and still is the duly elected, qualified, and acting county treasurer thereof. That the city of Lawrenceburg is a municipal corporation of the fifth class...