Hornbeck v. State ex rel. Davidson

• Decision Date: 05 October 1904
• Docket Number: No. 4,869.,4,869.
• Citation: 71 N.E. 916,33 Ind.App. 609
• Parties: HORNBECK et al. v. STATE OF INDIANA ex rel. DAVIDSON.
• Court: Indiana Appellate Court

33 Ind.App. 609

71 N.E. 916

HORNBECK et al.

v.STATE OF INDIANA ex rel. DAVIDSON.

No. 4,869.

Appellate Court of Indiana, Division No. 2.

Oct. 5, 1904.

Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Action by the state, on the relation of George Davidson, against Francis M. Hornbeck and others. From a judgment in favor of relator, defendants appeal. Reversed.

Slinkard & Slinkard and Cavins & Henderson, for appellants. Cyrus E. Davis and Webster V. Moffett, for appellee.

ROBY, P. J.

Action by the state of Indiana, on the relation of George Davidson, trustee of Washington township, Greene county, Ind., against appellant Hornbeck as principal, and his co-appellants, as sureties, upon the official bond of said Hornbeck as treasurer of the incorporated town of Lyons, in said county. The complaint is in one paragraph. To it a demurrer was overruled. The breach of the bond counted upon was in failing to pay over to the relator certain moneys received as treasurer of said board, the right of the relator thereto arising from the alleged fact “that on the - day of July, 1903, the said incorporated town of Lyons, having then a population of less than 1,500 persons by the last preceding census, and having no school indebtedness, did, by its board of trustees, through an order by them duly made and entered of record, abandon and discontinue the management and control of the public schools within such incorporated town, and did likewise and by such order abolish the board of trustees therein, whereby the office held by said Hornbeck was abolished and annulled and vacated, and said Hornbeck became liable to pay to this plaintiff, for the use of the common schools of said school township of Washington and the said incorporated town of Lyons, the said amount of money received by him as above alleged.” Other averments, essential to an action founded upon an official bond, were contained in the pleading. The board of trustees of an incorporated town, under the conditions alleged, was authorized by statute to take the action which is alleged to have been taken. Acts 1899, p. 373, c. 160; section 5915b, Burns' Ann. St. 1901. As a matter of pleading the averment was sufficient to show that the office of treasurer was abolished, and to require an accounting from the treasurer, and the ruling upon the demurrer was therefore correct. A separate answer in two paragraphs was filed by appellant Hornbeck, and a joint answer in two paragraphs by his co-appellants. The first paragraph of each answer was in general denial, and the second paragraph thereof contained averments designed to negative the alleged action of the town board aforesaid. Demurrers were sustained to the second paragraph of both pleadings, and in this also the ruling of the court was correct. The abandonment and discontinuance of the management and control of the schools by said town, and the abolishment of the board of school trustees were facts which, under the averments of the complaint, it devolved upon the plaintiff to establish. The general denial by the defendants made an issue, under which, without other pleadings, the appellants were entitled to introduce evidence exhibiting all the facts connected with the action of the board in said behalf. The cause was tried without a jury; a special finding of facts made and conclusions of law stated thereon. Appellants' motion for a new trial was overruled. Judgment was rendered in accordance with the conclusions of law for $901.87, which was the total amount of money received by said Hornbeck as school treasurer of said town.

The plaintiff, by bringing this action upon the official bond of the school treasurer, and basing his right to recover, as he does upon abandonment by the town of control over the schools, recognizes the incorporation of the town, the appointment of the board, and the election of the school treasurer. Section 5915, Burns' Ann. St. 1901; Woolverton v. Town of Albany. 152 Ind. 77, 52 N. E. 455. It is immaterial how long such town had been incorporated or such board organized. Its right to the school property and the control of the schools vested when the incorporation was complete. Board, etc., v. Center Tp. 143 Ind. 391, 42 N. E. 808;Carson v. State, 27 Ind. 465; State ex rel. Mt. Carmel, etc., v. Shields, 56 Ind. 521;School Town, etc. v. Plain School Tp., 86 Ind. 582. Changes in the membership of the town board do not affect the action taken by it. “Trustees may come and go, but the school township [incorporated town] goes on forever.” Sparta, etc., v. Mendell, 138 Ind. 188, 195, 37 N. E. 604. The right to abandon control is by section 5915, Burns' Ann. St. 1901, made dependent upon the following conditions: (1) That the corporation “has no school indebtedness”; (2) “that its inhabitants do not exceed 1,500 as shown by the last preceding census.” The seventh finding of fact is as follows: “That at the time of the passage of the ordinance and resolution in finding No. 6 hereof, and at all times before said time and since said time, the said town had less than 1,500 inhabitants, and at the time of the passage of said ordinance and resolution aforesaid the said school town of Lyons owed no debts and at same time had no school indebtedness.” This finding, in so far as it relates to the number of inhabitants in said town, is in accord with the evidence. The fourth finding is as follows: “That on the 12th day of June, 1902, the said board of school trustees, assuming to act as aforesaid, entered into and executed instruments in writing...