Honey v. Guillaume

• Decision Date: 29 June 1909
• Docket Number: No. 21,435.,21,435.
• Citation: 172 Ind. 552,88 N.E. 937
• Parties: HONEY v. GUILLAUME.
• Court: Indiana Supreme Court

172 Ind. 552

88 N.E. 937

HONEY

v.GUILLAUME.

No. 21,435.

Supreme Court of Indiana.

June 29, 1909.

Appeal from Circuit Court, Blackford County; C. E. Sturgis, Judge.

Application by Arthur Guillaume for a retail liquor license, against which William H. Honey and others filed a remonstrance. From an order granting the license, confirmed by the circuit court, the remonstrators appeal. Affirmed.

W. H. Honey, for appellants. A. M. Waltz and A. G. Emshwiller, for appellee.

HADLEY, J.

Appellee was, by the board of commissioners of Blackford county, on November 5, 1908, granted a license to sell intoxicating liquors at retail in the Fourth ward of Hartford City. On appeal, by remonstrators, to the circuit court, the license was confirmed, from which latter judgment this appeal is prosecuted.

Prior to appellee's application for license, two remonstrances by the voters of said Fourth ward had been filed with the auditor of the county against the granting of a license to any person or persons to sell at retail, within the ward, to wit, one on May 1, and the other on July 31, 1908, each purporting to contain the names of a majority of the legal voters of the ward. To each of these remonstrances appellee at the proper time filed a pleading, which he terms an answer, in four paragraphs; the paragraphs of like number, in the answers, being substantially the same. In the paragraphs numbered one it was alleged that certain named persons, who executed the remonstrance as attorneys in fact for 130 other persons whose names appeared on the first remonstrance, and for 151 persons whose names appeared on the second, had no legal authority to execute, in either case, the remonstrances on behalf of said other persons. In the second paragraph it was averred that said alleged attorneys in fact had no legal authority to execute either of said remonstrances for certain named persons set out. In the paragraphs numbered3 it was alleged that 16 named persons to the first remonstrance, and 21 to the second, were at the time of signing the same under the age of 21 years, and not legal voters of said ward. In the fourth paragraphs it was charged that certain names were duplicated. Each answer, at the close, was sworn to before a notary public, in the following terms: “Arthur Guillaume, being duly sworn upon his oath, says that upon information and belief the matters and facts above set forth in each paragraph are true as he verily believes.” The separate demurrer of the remonstrants to each paragraph of both answers was overruled. With respect to the ruling of the court on the demurrers, and the exceptions thereto, the record is as follows: “The court overrules each demurrer to the four paragraphs of the answer of applicant to the remonstrance filed May 1, 1908, to which ruling of the court each remonstrator at the time separately excepts. Court overrules each demurrer to the four paragraphs of the answer of the applicant to the remonstrance filed July 31, 1908, to which ruling of the court each remonstrator at the time separately excepts.”

Appellee insists that no question is presented on the ruling of the court, upon the separate demurrers to the several paragraphs of the answers, because the exceptions reserved were improper in form and unavailing. There seems to us no ground for serious contention on this point. The record very clearly shows that a separate demurrer was filed to each paragraph of both answers. It further appears that the court reached and announced the same ruling as to all the paragraphs. The ruling could not have related to other demurrers, for no other demurrers were filed; and, though the decision was expressed in terms somewhat vague and general, it must be applied to the demurrers to which it unmistakably related, and applied in character in which the demurrers were presented. Likewise, the exceptions reserved by appellant at the time-the contrary not appearing-must be held to follow and apply to the particular rulings just made, and as sufficient to carry the questions presented by the demurrers to a court of review. It may be said, with respect to such matters, that, when the record clearly shows what was intended by the court and parties, a party cannot be deprived of his right of exception by the inapt use of words by the court, in announcing a ruling, or the clerk in recording the same. Whitesell v. Strickler, 167 Ind. 602-608, 78 N. E. 845, 119 Am. St. Rep. 524;Bessler v. Laughlin, 168 Ind. 38, 79 N. E. 1033;Bedford Quarries Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418.

It is just as clear that the answers were all sufficient for the purposes for which they were pleaded, and that the demurrers thereto were properly overruled. The act of 1907 (Acts 1907, p. 281, c. 173; section 8333, Burns' Ann. St. 1908) provides: “That whenever a remonstrance shall be filed against the granting of any liquor license, the filing of such remonstrance, with the names thereto attached, shall be prima facie evidence that said names were regularly and properly and lawfully attached and signed to said...