Fletcher v. Crist

• Decision Date: 31 October 1894
• Citation: 38 N.E. 472,139 Ind. 121
• Parties: FLETCHER v. CRIST et al.
• Court: Indiana Supreme Court

139 Ind. 121

38 N.E. 472

FLETCHER

v.CRIST et al.

Supreme Court of Indiana.

Oct. 31, 1894.

Appeal from circuit court, Parke county; A. F. White, Judge.

Action by Foster A. Fletcher to compel the board of commissioners of Montgomery county to issue him a license for the sale of intoxicating liquors, against the remonstrances of Rollo G. Crist and others. From a judgment for the remonstrators, petitioner appealed. Reversed.

Hurley & Clodfelter and S. D. Puett, for appellant. Crane & Anderson, for appellees.

McCABE, J.

The appellant applied to the board of commissioners of Montgomery county for a license to sell intoxicating liquors in a less quantity than a quart at a time, in a certain room in a certain building in the village of New Market, in Brown township, in said county. Upon the hearing the board refused the license, and the applicant appealed therefrom to the circuit court of the county, and the venue of the cause was changed to the Parke circuit court. A jury trial in that court resulted in a verdict and judgment in favor of the remonstrators, and against the applicant, over his motion for a new trial. Two remonstrances had been filed before the board,-one by the voters of Brown township, and one by the voters of Scott and Union townships. The trial court overruled a motion by the appellant to strike out the remonstrance of the voters of Scott and Union townships, and also a motion to strike out certain portions of each of said remonstrances. The contents of the two remonstrances were alike in all respects, but it is contended by the appellant that none but legal voters of the township in which it was proposed to sell the liquor were authorized to remonstrate. Rev. St. 1894, § 7278 (Rev. St. 1881, § 5314). As an excuse for the filing of the remonstrance by the voters of Scott and Union townships, the appellees contend that it was authorized, under the circumstances, because the village of New Market, wherein the premises in which it was proposed to sell liquors are situate partly in all three townships, where they corner, and that the appellant's notice of application for license was to the citizens of New Market and to the citizens of all three townships, by naming in such notice all three townships. The statute authorized no one to remonstrate against the granting of such a license but a voter of the township. List v. Padgett, 96 Ind. 126. However, it is unnecessary to decide whether the voters of Scott and Union townships had a right, under the circumstances, to remonstrate or not. If they had not, the refusal to strike out their remonstrance would be, at most, a harmless error, because those who did have a right to remonstrate against the granting of the license had done so, specifying the same grounds of remonstrance that the voters of Union and Scott townships had specified, and they continued to vigorously prosecute the same to the end. If the evidence was contrary to, or insufficient to support, the verdict, that opposition or insufficiency would not have been either increased or decreased by striking out such remonstrance. The result could not and would not have been changed by striking out the remonstrance of the voters of Union and Scott townships. The evidence of unfitness of the applicant to be intrusted with a license was all admissible under the remonstrance of the voters of Brown township, and the other remonstrance had no influence in producing the verdict, or in preventing a verdict the other way. The motion to strike out parts of the remonstrance went to each and all of the grounds specified therein against the granting of the license. Had the motion been sustained, there would have been no grounds stated in the remonstrance why the license should not be granted. In short, there would have been no facts whatever left in the remonstrance. There would have been no remonstrance left on file. It would have been too late to file a remonstrance in the circuit court, had the court sustained the motion to strike out. Miller v. Wade, 58 Ind. 91; List v. Padgett, supra. Had a demurrer been filed to the remonstrance, or to the several specifications thereof separately, for want of sufficient facts, and it had been sustained, the remonstrance could have been amended. Stockwell v. Brant, 97 Ind. 474. We learn from the brief of appellant's counsel that the motion to strike out was designed by them to test the sufficiency of the several specifications in the remonstrance to constitute a defense to appellant's application. A motion to strike out does not and cannot perform the office of a demurrer. Port v. Williams, 6 Ind. 221;State v. Newlin, 69 Ind. 108;Manufacturing Co. v. Caven, 53 Ind. 258. This case furnishes a strong illustration of the propriety and necessity of the rule. If the facts stated in the remonstrance were relevant, yet insufficient to constitute a defense to the application, or to constitute a sufficient reason why the license should not be granted, and they are struck out on motion, the remonstrator has no remedy, though the most abundant reasons exist why the license should not be granted, because he cannot file a new remonstrance in the circuit court, as we have already seen. Had the objection been taken by demurrer on the same being sustained, he could have amended the remonstrance so as to make its statement of facts sufficient to warrant the refusal of the license. If it be said that the motion to strike out was directed to the several specifications in the remonstrance separately, and that under it portions might have been stricken...