List v. Padgett

• Decision Date: 04 June 1884
• Docket Number: 11,289
• Citation: 96 Ind. 126
• Parties: List et al. v. Padgett
• Court: Indiana Supreme Court

96 Ind. 126

List et al. v. Padgett

No. 11,289

Supreme Court of Indiana

June 4, 1884

From the Johnson Circuit Court.

J. H Jordan, G. W. Grubbs, G. A. Adams, L. Ferguson, W. R Harrison and W. E. McCord, for appellants.

J. V Mitchell, J. F. Cox, J. E. McDonald, J. M. Butler and A. L Mason, for appellee.

OPINION

Black, C.

In March, 1883, the appellee applied to the board of commissioners of Morgan county for license to sell intoxicating liquors in Martinsville, Washington township, in said county.

Bedford C. Wigginton and Samuel J. List remonstrated, in writing, before said board against the granting of such license, making general and specific charges of unfitness of the applicant. The board of commissioners refused to grant the license, and the applicant appealed to the Morgan Circuit Court. Venue was changed to the Shelby Circuit Court and thence to the Johnson Circuit Court, where, on the 24th of September, 1883, said Wigginton, by his attorney in fact, dismissed his remonstrance. At the same time, a power of attorney executed by said List, on the 11th of September, 1883, was filed by the attorney in fact, therein named, one Hilton, whom said List thereby authorized to dismiss his said remonstrance; and thereupon said attorney in fact of said List moved to withdraw and dismiss List's remonstrance. But List appeared by other attorneys in fact, and objected to the dismissal of his remonstrance under said power of attorney, which it was shown said List had revoked by a power of attorney, dated September 20th, 1883, by which he authorized said other attorneys in fact to prosecute his said remonstrance.

Pending said motion of Hilton to dismiss and the objection thereto, it having been shown that said List, after the filing of his remonstrance, had removed to the State of Illinois and was then a resident thereof, the court, over the objection of List and his attorneys in fact appointed September 20th, 1883, and over their offer to proceed with the trial of said remonstrance, dismissed said remonstrance as to said List, and refused to permit him longer by his said attorneys to prosecute said remonstrance. Thereupon, Merwin W. Rowe filed his sworn application, wherein he represented that he was a resident of Washington township, Morgan county, Indiana, and that he was over twenty-one years of age and was a legal voter of said township; and he asked to be permitted to add his name to said remonstrance and to contest said application, and alleged that the material and substantial allegations in said remonstrance were true.

Upon motion of the applicant, the petition of said Rowe was rejected.

The cause coming on for trial, said List and Rowe moved that a jury be empanelled and sworn to try the cause. Upon objection made by the applicant, the court refused to allow a jury to be called. The cause was tried by the court. On the trial, the court, upon objections made by the applicant, rejected evidence offered by attorneys on behalf of said List and Rowe. The court found in favor of the applicant, and rendered judgment accordingly, from which said List and Rowe appeal.

If the court did not err in dismissing the remonstrance as to List, or in refusing to permit Rowe to become a remonstrant, the judgment must be affirmed.

The statute, section 5314, R. S. 1881, provides that "it shall be the privilege of any voter of said township to remonstrate, in writing, against the granting of such license to any applicant, on account of immorality or other unfitness, as is specified in this act."

There is no other provision authorizing a remonstrance in such cases, and it is manifestly intended that the remonstrance shall be presented to the board of commissioners.

In Miller v. Wade, 58 Ind. 91, it was held to be error to permit a person to become a party as a remonstrant after the case was appealed to the circuit court, and while it was pending therein. We are asked to overrule that decision, but we think it was clearly right. It follows that there was no error in rejecting the application of the appellant Rowe.

It does not affirmatively appear that the appellant List was at any time a voter of said Washington...