Funk v. State, ex rel. Baker
| Decision Date | 10 May 1906 |
| Docket Number | 20,768 |
| Citation | 77 N.E. 854,166 Ind. 455 |
| Parties | Funk, Treasurer, v. State, ex rel. Baker |
| Court | Indiana Supreme Court |
From Allen Circuit Court; James C. Branyan, Special Judge.
Action by the State of Indiana, on the relation of Cain Baker against Jacob Funk, as county treasurer of Allen county. From a judgment for plaintiff, defendant appeals. (For opinion on transfer from Appellate Court, see 37 Ind.App. 231.)
Reversed.
W & E. Leonard, R. B. Dreibelbiss and E. V. Harris, for appellant.
John H Aiken and Frank J. Belot, for appellee.
The court below issued an alternative writ of mandamus requiring appellant, as treasurer of Allen county, to show cause why he should not pay a warrant for $ 50, issued upon the order of the county surveyor to D. C. Cope or bearer, on account of the "Litzenberger ditch," and assigned to the relator. Appellant filed his return or answer in four paragraphs. The first was a general denial; the second admitted the allegations of the writ, and averred that at the time payment of the warrant was demanded the relator was owing taxes for state, county, township and city purposes, due and delinquent for the years 1892 to 1903, inclusive, to the amount of $ 39.62, as shown by a bill of particulars, and that appellant, as such treasurer, claimed the right to deduct the amount of such taxes, and that full payment was refused accordingly, and that as such treasurer he levied upon said amount for the collection of said taxes, and brought into court and tendered to the relator the balance of $ 10.38. The third paragraph is substantially like the second, but avers more specifically a tender of $ 10.38 at the time full payment of the warrant was demanded by the relator. The fourth paragraph is in substance like the second and third; but in addition appellant brings into court and tenders a receipt for $ 39.62 in payment of the relator's said taxes. The first paragraph of answer was withdrawn, and a demurrer for want of facts was sustained to the affirmative paragraphs of answer. Appellant declining to plead over, judgment was rendered for the issuance of a peremptory writ for the payment of said warrant and for costs.
The errors assigned are, overruling appellant's demurrer to the alternative writ of mandamus as amended, and sustaining demurrers to each paragraph of answer.
Appellant's counsel have failed to point out any alleged defect in the writ, or to cite any authority or advance any argument in their brief, in support of the first error assigned, and the same must be regarded as waived. Storer v. Markley (1905), 164 Ind. 535, 73 N.E. 1081; Williams v. Citizens Enterprise Co. (1899), 153 Ind. 496, 55 N.E. 425; Ewbank's Manual, § 188.
The pleadings are not models, and in the affirmative answers it is alleged only in general terms that appellant as treasurer levied upon the amount of money necessary to satisfy the delinquent taxes. It may be conceded that sufficient facts are not pleaded to show such a vesting of title in the relator to the money represented by the warrant as to authorize a levy thereon, or to show that a legal levy was made by appellant, but it does not follow that the answers are insufficient. It is averred that the relator is indebted for...
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