Helms v. State ex rel. Cunningham

• Decision Date: 16 November 1897
• Parties: HELMS v. STATE ex rel. CUNNINGHAM.
• Court: Indiana Appellate Court

19 Ind.App. 360

48 N.E. 264

HELMS

v.STATE ex rel.

CUNNINGHAM.¹

Appellate Court of Indiana.

Nov. 16, 1897.

Appeal from circuit court, Rush county; John D. Miller, Judge.

Action, on the relation of James W. Cunningham, against Albert Helms and others, to recover on the bond of a township trustee. From a judgment sustaining a demurrer to certain paragraphs of the answer, defendants appeal. Affirmed.

R. A. Black, J. B. Black, and E. B. Pugh, for appellants. Smith & Cambern, Downing & Hough, and Marsh & Cook, for appellee.

ROBINSON, J.

Appellee sued appellants on the official bond of Albert Helms as trustee of Sugar Creek township, in Hancock county, Ind. The complaint avers that Albert Helms was trustee of Sugar Creek township, and that appellants Rice, Eaton, Nichols, and Nichols were sureties on his official bond; that in November, 1888, said Helms, as such township trustee, was engaged in erecting a school house suitable and necessary for the educational purposes of his township; that, in order to complete said building, it became necessary for him, as trustee, to borrow money and incur debts on behalf of his township, and, in order to obtain the money necessary for that purpose, he, as such trustee, and in the name of and in behalf of his township, executed a promissory note for the sum of $1,000 to the appellee; that said Helms received on said note $1,000 in money; that after said loan was made, and the said funds so received by said trustee, and for the purpose aforesaid, the said Helms, without the knowledge of appellee, appropriated the same to his own use; that said sum of money has never been repaid appellee, nor any part thereof; that the debts of the township were at the time, in the aggregate, in excess of the special school fund on hand; that the special school fund of said township, then, and before said loan was made, in the hands of said trustee, and the funds received and to be derived from taxes assessed in said township for the year 1888, in which said debt was incurred, together, were less in amount than said loan; that said trustee did not at any time procure an order from the board of commissioners of the county authorizing him to contract such indebtedness, and that said trustee did not at any time file a petition in the auditor's office of said county setting forth the object for which said debt was made or was to be incurred, or the proximate amount to be required, nor did said trustee make affidavit to said board that he had caused notice to be given of the pendency of any petition in that behalf, or that any notice of said petition was ever given or posted; that said relator loaned said money to said township in good faith, and without any knowledge of the fact that there were no funds on hand, or a sufficient amount of funds arising from the current levy, to pay said debt so made. The bond of the trustee and the note were filed with the complaint as exhibits. On a former appeal to the supreme court the complaint was held sufficient. State v. Helms, 136 Ind. 122, 35 N. E. 893. The appellants answered in four paragraphs. The first paragraph was a general denial; and the fourth, a plea of payment. The second paragraph of answer admits that the trustee, Helms, borrowed the money and executed the note, and denies that Helms converted the money to his own use; but it is averred that Helms, as such trustee, used and expended said money in the building and construction of a school house for said township, which said school house was necessary and proper for the use and purpose of said township. The third paragraph of answer differs from the second only in that it avers that, of the money borrowed, $500 was expended for such school house, and that the...