Heritage v. State ex rel. Crim

• Decision Date: 28 April 1909
• Docket Number: No. 6,485.,6,485.
• Parties: HERITAGE v. STATE ex rel. CRIM, County Auditor, et al.
• Court: Indiana Appellate Court

43 Ind.App. 595

88 N.E. 114

HERITAGE

v.STATE ex rel. CRIM, County Auditor, et al.

No. 6,485.

Appellate Court of Indiana, Division No. 1.

April 28, 1909.

Appeal from Circuit Court, Delaware County; J. G. Leffler, Judge.

Action by the State, on the relation of Otis P. Crim, as Auditor of Madison County, against Cyrenius F. Heritage. Judgment for plaintiff, and defendant appeals. Affirmed.Walter L. Ball, Willis S. Ellis, and J. E. McCullough, for appellant. Arthur C. Call, Bagot & Bagot, and Kittinger & Diven, for appellee.

HADLEY, J.

This is an action, brought by appellee to recover money alleged to have been collected by appellant as treasurer of Madison county, and not reported or turned over to his successor in office. Before the trial it was agreed between appellant and appellee, in writing, that the books of such treasurer and the auditor of said county should be examined and audited by a commission agreed upon, and report the result of such examination to the court, which report would be treated as the verdict of the jury. The reference to the commission was under section 896, Burns' Ann. St. 1908. The agreement was submitted in open court, spread on the records, and made a rule of court, and the appointment of the commission approved, entered of record, and other proceedings had substantially conforming to the provisions of the statute. It was also agreed in said submission that all issues of law and fact not included in said submission should be heard and determined by the court and jury. The commission, consisting of three men, accepted the appointment, were duly sworn, made the examination, and reported its finding, by which report it appeared that appellant was indebted to the county in the sum of $5,101.23. The court approved the report, ordered it spread of record, and upon the trial treated the amounts so returned as the finding of the jury, and rendered judgment against appellant and his bondsmen for said sum.

The complaint is in three paragraphs, to each of which appellant filed a demurrer, and each of which was overruled. These rulings are presented for our consideration. It is urged against each paragraph that neither directly avers that the relator is the auditor of Madison county. The caption of the complaint is “State of Indiana ex rel. Otis P. Crim, Auditor of Madison County, Ind., v.,” etc. The complaint then begins: “State of Indiana, on the relation of Otis P. Crim, as auditor of Madison county, Ind., complains,” etc. There is no formal averment that the relator is the auditor of Madison county, duly elected, qualified, and acting; and, while such formal averment would have been more in accordance with the rules of good pleading, and with approved precedents, than the form adopted, yet, under the provisions of our Code and the liberal interpretation that should be given averments in pleadings on incidental or collateral matters, or matters that do not go to the merit of the cause, we must hold that each paragraph of the complaint is sufficient in this respect. Burns' Ann. St. 1908, § 385; Toner et al. v. Wagner, 158 Ind. 447, 63 N. E. 859;Kelley v. Love, 35 Ind. 106;Beers v. Shannon, 73 N. Y. 292;Chamberlain v. Tiner, 31 Minn. 371, 18 N. W. 97. While it is held in some cases that a court will construe a pleading most strongly against the pleader, yet it is well established that, where pleadings are neither indefinite nor ambiguous, the court is not required to construe it most strongly against the pleader, when a liberal construction will promote substantial justice between the parties. Smith v. Borden, 160 Ind. 223, 66 N. E. 681, and cases cited. From the caption and the averments of the complaint before us, it is perfectly clear that appellant could not have been misled as to the character in which the relator sued.

It is also urged against the third paragraph that it pleads a settlement between appellant and the board of commissioners, but seeks to avoid the same on the ground of fraud and mutual mistake, but does not aver that such settlement has been set aside. This paragraph first averred the facts shown in the other paragraphs, showing a defalcation on the part of appellant, and his consequent indebtedness to the county; that after appellant had gone out of office, a controversy arose as to his settlement previously made, and an expert accountant was secured to audit appellant's books. Upon the showing made by this accountant, and by mutual mistakes of both of the parties, it appeared that the county was indebted to appellant in the sum of $4,600; that thereupon the county paid to appellant said sum; that said sum was so paid by mutual mistake of all of the parties, upon the basis of the report of said accountant, which report contained errors and mistakes and was fraudulent. It is also averred in this paragraph that by this action appellee does not seek to recover the amount so paid to appellant, but only seeks to recover the amount shown by his books to have come into his hands as treasurer during his term of office, and not accounted for. A settlement of a county treasurer with his board of county commissioners, while unimpeached, is prima facie evidence that he has duly accounted to the proper officers, but where, as here, it is shown that such settlement was made under a misapprehension of the facts, and through fraud and mutual mistake of the parties, it has no binding force whatever. Murphy v. Oren, 121 Ind. 59, 22 N. E. 739. It is provided by statute that such settlement shall not be conclusive. Burns' Ann. St. 1908, § 6086. The provisions of this act are for the protection of the officers, as well as protection of the county. Board v. Crone, 36 Ind. App. 283, 75 N. E. 826. This is true, even though such settlement is not the regular settlement, but is by way of compromise to avoid litigation. Zuelly et al. v. Casper et al., 37 Ind. App. 186, 76 N. E. 646, where it is said, with reference to such settlement: “The board can no more make donations of the public revenues to a county officer than it can bestow such favor on a private individual.” A county officer with public money in his hands is not relieved of his obligation to repay the same to the proper authorities by either mistake or fraud of the board of commissioners. He can only be relieved of this obligation by paying over the money, and mistake, fraud, or negligence of the board of commissioners in making settlements cannot be interposed as a substitute for such payment. The averments of this paragraph showed affirmatively that appellant had collected money, as treasurer, that he had not accounted for. This being so, and the demurrer admits it so to be, no agreement or settlement with the board could be set up as an avoidance or estoppel for its recovery. The averments, with reference to the settlement, might be treated as surplusage. Certainly they do not rebut or vitiate the averments of the paragraph showing a shortage and consequent indebtedness to the county. The demurrers were properly overruled to the complaint.

After the arbitrators or commissioners, as they are called in the agreement, had completed their examination, and before making their report, it became known to appellant that their finding would be against him in about the sum stated. He thereupon filed a motion to revoke the submission to the commission, upon the ground of irregularities on the part of said commissioners. The charges were that two of said commissioners refused to act with the other commissioner, excluded him from their meetings, consultations, and examinations, asserting as a reason that such third commissioner was unduly prejudiced in favor of appellant; that they secretly held consultations, and received assistance from the relator; that they did not call upon appellee to furnish them any information or explanation of his books and records; and that their examination was unfair to him. These motions were overruled, and the rulings are assigned as error. A common-law submission may be revoked at any time before the award is made, even though the agreement provides...