Kunkle v. Coleman

• Decision Date: 08 June 1910
• Docket Number: No. 21,558.,21,558.
• Citation: 92 N.E. 61,174 Ind. 315
• Parties: KUNKLE v. COLEMAN et al.
• Court: Indiana Appellate Court

174 Ind. 315

92 N.E. 61

KUNKLE

v.COLEMAN et al.

No. 21,558.

Appellate Court of Indiana, Division No. 1.

June 8, 1910.

Appeal from Circuit Court, Pike County; Jno. L. Bretz, Judge.

Application by John E. Kunkle for a liquor license in Pike county, to which John W. Coleman and others file a plea in bar. Judgment for defendants, and petitioner appeals. Affirmed.Alvin Padgett, E. P. Richardson, A. J. Padgett, and A. H. Taylor, for appellant. S. E. Dillin and D. D. Corn, for appellees.

MYERS, J.

Appellant applied for liquor license in 1905, and his application had been pending in various forms and stages including two appeals to this court (Kunkle v. Abell, 167 Ind. 434, 79 N. E. 753;Kunkel v. Abell, 170 Ind. 305, 84 N. E. 503), and, upon the cause being redocketed in the Pike circuit court, the following plea, omitting the caption and the jurat, was filed: “The defendants, by way of plea in abatement, herein allege that on the 5th day of December, 1908, in accordance with the provisions of an act of the Special Session of the Legislature of 1908, entitled an ‘Act to better regulate, restrict and control the sale of intoxicating liquors and providing for local option elections,’ and recorded on page 4 of said acts, Oliver A. Byers et al., 1,220 residents and legal voters of the county of Pike and state of Indiana, presented their petition to the commissioners of said county, asking that an election might be held in said county to determine whether or not the sale of intoxicating liquors should be prohibited in said county; that said petition contained more than 20 per cent. of the voters of the said county as shown by the aggregate vote in said county cast for Secretary of State at the last preceding general election held in said county; that in accordance with the prayer of said petition said board of commissioners of said county ordered a special election to be held in all the voting precincts of said county on the 31st day of December, 1908; that election commissioners and other election officers were appointed for the purpose of holding said election as provided in said act, and legal notice thereof given by the sheriff of said county; that in pursuance of said notice the polls were opened in all the voting precincts of said county for said purpose on said day; that at the close of the polls the vote for and against said proposition were duly counted by the board of the several precincts, and that on the 1st day of January, 1909, the inspectors of each of said precincts brought the returns of said vote to Petersburgh, Ind., where the same was duly tabulated by the election commissionersappointed for the purpose of holding said election; that said vote when tabulated showed that there had been a total of 2,135 votes cast for the prohibition of the sale of intoxicating liquors as beverage in said county, and a total of 1,218 votes against such prohibition-a majority in favor of such prohibition of 917; that on the 4th day of January, 1909, the auditor of said county duly certified said vote to the board of commissioners of said county, and the same was by them duly recorded in the commissioners' record of said county. Wherefore the said defendants prayed that this action may abate.”

Appellant filed a demurrer to appellees' plea in abatement: “That said plea in abatement does not state facts sufficient to constitute a cause of defense to the plaintiff's cause of action, being his application for a license to sell intoxicating liquors at retail in Washington township in said county and state.” The court overruled appellant's demurrer to the plea, and appellant excepted, and refused to plead further, and the court rendered judgment against him.

Two general questions are presented by this appeal. The constitutionality of the act of the Special Session of 1908, p. 4, is attacked upon numerous grounds, all of which have been determined adversely to appellant in late cases. McPherson v. State (1909) 90 N. E. 610;Gordon v. Corning (at this term) 92 N. E. 59.

The second proposition contended for by appellant is that, conceding that the act is constitutional, the so-called plea in abatement is insufficient in the following particulars: (a) That it does not show that the election commissioners met at the auditor's office in the courthouse, and canvassed the returns and certified the result; (b) that it does not allege that the certificate of election was filed with the auditor; (c) that it does not allege that the board of commissioners at their next regular session made an order declaring the result of said election; (d) that it does not allege that the election commissioners met at the auditor's office at 10 o'clock a. m. and canvassed the return, and certified the result to the board of commissioners; (e) that it does not allege that the election commissioners ever certified the result of said election to the board of commissioners, or that any certificate of the election commissioners was ever filed with the auditor; (f) that it does not allege that the election commissioners ever canvassed the returns, or ascertained that a majority of the votes were in favor of, or against the prohibition of, the sale of intoxicating liquors; (g) that it does not allege that any record was ever made upon any competent authority under the act of 1908, which would authorize the Pike circuit court to deny appellant's application. Appellees denominated the pleading filed by them as a plea in abatement, appellant's demurrer is addressed to it upon the theory that it is a plea in bar, and the demurrer is for want of facts sufficient to constitute a defense to the application, and appellees claim that the demurrer is insufficient in form to raise any question. If the pleading is one in abatement, appellees are right. Combs v. Union Trust Co., 146 Ind. 688, 46 N. E. 16;State v. Lannoy, 30 Ind. App. 335, 65 N. E. 1052. Appellant insists that the pleading must be determined as to character, not by what it is denominated by the pleader, but by the substance and object of the pleading. McClanahan v. Williams, 136 Ind. 30, 35 N. E. 897;Sidener v. Davis, 69 Ind. 336;Harness v. Harness, 63 Ind. 1.

A plea in abatement is one which does not go to the merits of the action, but postpones the action until some requisite disclosed by the plea is complied with. Moore v. Sargent, 112 Ind. 484, 14 N. E. 466; Encyc. Pl. & Pr. vol. 1, p. 1. But a pleading which alleges in avoidance of a cause of action is a plea in bar. State v. Ruhlman, 111 Ind....