High v. Board of Commissioners of Shelby County

• Decision Date: 11 January 1884
• Docket Number: 10,610
• Citation: 92 Ind. 580
• Parties: High et al. v. Board of Commissioners of Shelby County
• Court: Indiana Supreme Court

92 Ind. 580

High et al. v. Board of Commissioners of Shelby County

No. 10,610

Supreme Court of Indiana

January 11, 1884

From the Shelby Circuit Court.

The judgment is affirmed, at the costs of the appellant High.

B. F Love, H. C. Morrison, T. B. Adams, and L. T. Michener, for appellants.

L. J Hackney and E. K. Adams, for appellee.

OPINION

Colerick C.

This was an action brought by the appellant High against the appellee, the board of commissioners of Shelby county, to recover the amount of a bounty offered by said board to persons enlisting in the military service of United States in the late war of the Rebellion, to fill a quota assigned to Shelby county under a call of the President of the United States for volunteers to suppress the Rebellion.

The complaint, in substance, avers that on the 2d day of November, 1863, said board made, and entered upon the record of its proceedings, an order, a copy of which is set forth in the complaint, the material part of which order is: "Wherefore, it is ordered by the board that a bounty of $ 100 be paid to each and every volunteer to fill up the quota of Shelby county under the last call of the President of the United States, so soon as said volunteer shall be mustered and sworn into the service of the United States." It further avers that afterwards, December 17th, 1863, said board made and entered upon its said record, an additional order, a copy of which is also set forth in the complaint, which order, in part, is as follows: "And said petition" (referring to a petition which had been presented to the board by citizens of said county, asking the board to offer an additional bounty to volunteers to fill said quota) "being read, and the board being sufficiently advised, do now consider it expedient, for the purpose of encouraging volunteering, to offer a bounty of $ 100 in addition to the one offered by the board on the 2d day of November, A. D. 1863. Therefore, it is ordered by the board that each and every volunteer volunteering under the last call of the President of the United States, to fill Shelby county's quota, to the number not exceeding two hundred, be allowed and paid the sum of $ 100, in addition to the $ 100 heretofore allowed by this board, to be paid in a county bond of Shelby county, Indiana, payable in two years, and bearing interest at the rate of six per cent. per annum from date of issuing: Provided, however, That all volunteers that have received a bounty of $ 100 from the several townships that have offered a bounty in addition to the one offered by this board November 2d, 1863, be not allowed additional bounty offered by this board. And it is further ordered by the board that the township that has paid a bounty of $ 100 in addition to the bounty of $ 100 offered November 2d, 1863, by this board, have the same refunded by Shelby county. And it is further ordered that two hundred and fifty-four county bonds be issued in the sum of $ 100 each, to be placed in the hands of the auditor, to be dated by him at the date called for, and to be by him delivered to all volunteers under the last call of the President of the United States, upon their producing the proper certificate of the mustering officer that they have been regularly mustered into the United States service. Ordered by the board that the auditor be and he is hereby authorized to issue to each and every volunteer to fill the quota of Shelby county, under the last call of the President of the United States, a county order for the sum of $ 100, for bounty offered by the board November 2d, 1863, upon such volunteer filing with said auditor the proper certificate of the mustering officer that he was regularly mustered into the United States service: Provided, however, That no order be issued to such volunteers as have already received such order; said orders to be issued not to exceed in number two hundred and five."

The complaint then avers that on the 4th day of January, 1864, Bert McNeeley (who was made a defendant to the action) volunteered to fill the quota of said county, the same not then having been filled, and was credited to said county, and was afterwards, on the 10th day of January, 1863, mustered into the service of the United States as a soldier; that said McNeeley, on the 15th day of March, 1881, assigned, in writing, his claim for said bounty to the plaintiff, a copy of which assignment is filed with the complaint, McNeeley being made a party to answer as to his interest in said claim; that on the 10th day of January, 1879, said McNeeley demanded of said auditor that he issue and deliver to him his warrant on the treasurer of said county for the amount of money due to him by virtue of the orders made by said board aforesaid, but said auditor refused and failed to do so; that the same has never been issued, nor has the said amount, or any part thereof, ever been paid, although long past due; nor did said McNeeley or the plaintiff ever receive or obtain any bounty from any township. Wherefore plaintiff prayed judgment for said sum of $ 200, together with interest thereon since the date of the enlistment of McNeeley, and other relief.

To this complaint McNeeley, who, for some unexplained reason, has been improperly made a party appellant to the appeal, filed an answer, admitting the facts therein stated, and the appellee filed its answer in thirteen paragraphs, all of which were subsequently withdrawn except the thirteenth, to which the appellant High demurred, alleging insufficiency of facts, and the demurrer was overruled, to which ruling he excepted, and filed a reply in one paragraph, to which the appellee demurred for the want of facts, and, the demurrer being sustained, the appellant High excepted, and, refusing to plead over, and electing to stand by his reply, final judgment was rendered against him, from which he appeals, and assigns as errors for the reversal of the judgment:

1. The ruling of the court on the demurrer to the thirteenth paragraph of the answer.

2. The ruling of the court on the demurrer to the reply.

3. The rendering of judgment against him in favor of the appellee.

The only errors discussed by him are the two first named, and, therefore, they are the only ones presented for our consideration.

First. Did the court err in overruling the demurrer to the thirteenth paragraph of the answer, which was as follows: "Thirteenth. The defendant, for further answer, says that more than six years have elapsed since the plaintiff's cause of action accrued, and before the commencement of this action."

The same question, growing out of and based upon the same orders of the same board of commissioners as in this case, was presented in the same manner to, and decided by, this court in Sithin v. Board, etc., 66 Ind. 109, in which an answer, pleading the statute of limitations of six years, was held bad. The opinion of the court upon the question so presented is very brief, viz.: "The second paragraph was clearly bad. The basis of the action was the written contract contained in the orders of the board offering the bounty. * * The action was, therefore, not barred in six years." Afterwards the same question was again presented to this court in the case of Board etc., v. Shipley, 77 Ind. 553, when the case above cited was reviewed and overruled, and it was then held by this court that an offer of bounty to volunteers for military service, entered upon the records of a county board, and the acceptance of the offer by enlistment according to the conditions of the offer, did not constitute a contract in writing within the meaning of the statute of limitations, and that such a contract resting partly in writing and partly in parol is to be regarded as an oral contract, to which the six year period of limitation applies. Worden, J., who rendered the opinion of the court in both cases, said, in the case last cited: "The order entered by the board of commissioners was not a complete contract. Indeed, it was no contract at all. There was no party to it except the board. It was a mere offer in writing to any person who might volunteer and be credited to Marion county, as therein stated. It might, doubtless, have been withdrawn entirely before any one had volunteered and been credited as provided for. Until some one had accepted the offer by volunteering and had been credited in accordance with the terms of the offer, no binding contract existed. But the acceptance of the offer, as above stated, could only be shown by evidence extraneous to the order of the board. The offer of the board and its acceptance by the appellee, by complying with its terms, constituted a valid contract; but it existed in writing so far as the offer was concerned, and in parol so far as its acceptance was...