Hancock Cnty. v. Leggett

• Citation: 18 N.E. 53,115 Ind. 544
• Parties: Hancock County v. Leggett.
• Decision Date: 28 September 1888
• Court: Supreme Court of Indiana

115 Ind. 544

18 N.E. 53

Hancock County

v.Leggett.

Supreme Court of Indiana.

September 28, 1888.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Action by Joseph T. Leggett against the board of commissioners of Hancock county to recover damages sustained while attempting to cross a bridge of which the county was the owner. There was a judgment for plaintiff, and defendant appeals.John F. Kibbey, Joseph H. Kibbey, and Marsh & Cook, for appellant. James A. New, for appellee.

Elliott, J.

The complaint of the appellee seeks to recover damages sustained while attempting to cross a bridge of which the county was the owner, and which, as the complaint charges, it negligently failed to keep in a safe condition for travel. The complaint is conceded to be sufficient in so far as it charges negligence on the part of the appellant, but it is urged, in a very able argument, that it is insufficient because it does not show that the claim of the appellee was presented to the board of county commissioners before the action was instituted. The allegations of the complaint upon this phase of the case are these: “And plaintiff says that, before the commencement of this cause, he filed his claim before the board of commissioners of Hancock county for the identical cause above set forth, and praying an allowance of said claim in settlement thereof; that on the 14th day of December, 1885, said defendant, then being in regular session, disallowed his said claim, and refused to allow any part thereof.” The position of appellant's counsel is thus stated in their brief: “Appellant insists that these allegations are insufficient, either to constitute a cause of action, or to clothe the court below with jurisdiction of the subject-matter of the action.” The statute provides that no court shall have original jurisdiction of any claim against a county, unless the claimant shall file his claim with, and have the same disallowed, in whole or in part, by, the board of commissioners. Sections 5758-5760, 5769, Rev. St. 1881. Section 5761, Rev. St. 1881, prescribes the mode of filing claims as follows: “Sec. 5761. No allowance shall be made by such commissioners, unless the claimant shall file with the commissioners a detailed statement of the items and dates of charge, nor until such competent proof thereof is adduced in favor of such claim as is required in other courts,” etc. It is not alleged that such a claim was filed, nor are there facts alleged that would show a compliance with the statute in that particular. However informal the claim filed with the commissioners may have been in other particulars, it was imperative that it should have given a “detailed statement of the items and dates of charge.” Commissioners v. Ritter, 90 Ind. 362. The prerequisites of the statute must all be complied with before the suit can be maintained. As we understand the object of the law, it is that the commissioners shall have an opportunity to examine the claim and hear evidence concerning its merits, and, if right, to allow it, but they can make no such allowance until a proper claim is filed. If we are correct in our assumption that the law contemplates that the board shall first have the opportunity to allow the claim before suit can be brought on it, then it is necessary that such a claim should be presented to the board as they have power to allow; otherwise the provision is wholly nugatory. For aught that appears in the complaint, and, in fact, in the evidence, the claim might have been disallowed because of such informality. The claim must at least have been such that an allowance based upon it would have been an adjudication that would have barred another suit for the same cause of action.

The point made by appellant's counsel is decided against them by the case of Machine Works v. Parke Co., 17 N. E. Rep. 593, (this term.) In that case it was held that, as the circuit court is a superior court of general jurisdiction, the presumption is that it had jurisdiction of the cause it assumed to try. It results from this doctrine that the want of jurisdiction is matter of defense, since the presumption makes a prima facie case in favor of the appellee, and such a case can only be defeated by affirmative evidence given upon an issue properly tendered. Waiving many questions of practice made and insisted upon by the...