Martin v. Bd. of Com'rs of Pike Cnty.

• Decision Date: 23 October 1917
• Docket Number: No. 9435.,9435.
• Citation: 117 N.E. 517,65 Ind.App. 375
• Parties: MARTIN v. BOARD OF COM'RS OF PIKE COUNTY et al.
• Court: Indiana Appellate Court

65 Ind.App. 375

117 N.E. 517

MARTIN

v.BOARD OF COM'RS OF PIKE COUNTY et al.

No. 9435.

Appellate Court of Indiana, Division No. 1.

Oct. 23, 1917.

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

Suit by Josiah Martin against the Board of Commissioners of Pike County and others. Judgment for defendants on plaintiff's refusal to plead over after demurrers to the complaint were sustained, and plaintiff appeals. Affirmed.

Frank Ely and J. W. Wilson, both of Petersburg, for appellant. William D. Curll, of Petersburg, for appellees.

HOTTEL, C. J.

This is an appeal from a judgment in appellees' favor in an action predicated on a complaint in one paragraph, the material averments of which, briefly stated, are as follows: Appellant was the surveyor of Pike county on the 1st day of April, 1915, and at that time and for months before that was qualified to do and perform all surveying work required by law of him to be performed. At the April term, 1915, of the defendant board of commissioners, said board of commissioners ordered built a certain bridge in Pike county, and advertised for bids for the same to be opened at the May term. At the May term said board accepted the bid of the defendant bridge company, and at the same time employed the defendant Burch to prepare the necessary plans for the said bridge and specifications therefor. The board refused to allow appellant to prepare said plans, although they knew that he was surveyor and qualified as provided by law, and willing to prepare them. The board ordered the defendant bridge company to erect said bridge according to the plans and specifications prepared by defendant Burch. Said Burch was at no time surveyor of Pike county or a deputy surveyor. The plans so prepared by him are void; he had no authority in law to prepare them. The advertising of the construction of said bridge according to said plans was void. It was the imperative duty of appellant to prepare said plans and specifications, and his duty to superintend the erection of said bridge. The defendant board refused to allow appellant to perform said duty. Prayer that the erection of said bridge upon the plans prepared by said Burch be enjoined, and that defendant board be enjoined from employing any one other than appellant to perform the work incident to the erection of said bridge. To this complaint appellees filed separate and several demurrers. These demurrers were sustained, and, appellant having refused to plead further, judgment was rendered against him on his complaint. A motion for new trial filed by appellant was overruled. The rulings indicated are assigned as error and relied on for reversal.

[1] The complaint being in a single paragraph, and appellant having elected to stand thereon, after an adverse ruling on the demurrer thereto, the filing of the motion for a new trial was unnecessary, and the ruling on such motion presents no question on appeal. Appellees' said several demurrers are predicated on the first and fifth statutory grounds, provided by section 344, Burns 1914, and are each accompanied by a memorandum stating wherein the complaint is insufficient. However, inasmuch as the ruling of the trial court on said demurrers, if correct, must be upheld regardless of whether the correct reason therefor be indicated in such memoranda (Bruns v. Cope, 182 Ind. 289, 105 N. E. 471;Laufer v. Laufer, 61 Ind. App. 508, 112 N. E. 106), it is sufficient to indicate generally the propositions of law relied on by appellees which, we think, support the said ruling. These propositions are, in substance, as follows:

[2] Any one demanding the aid of a court must have some interest in the matter or controversy which he seeks to have litigated and determined. Section 251, Burns 1914; Shoemaker v. Board, 36 Ind. 175;Ervin et al. v. State ex rel., 150 Ind. 333, 345, 48 N. E. 249.

And, when the appeal is to the equity side of the court, seeking injunctive relief, facts and circumstances must be alleged showing something more than a mere technical and inconsequential wrong or irregularity in the proceedings sought to be enjoined. 16 Am. & Eng. Enc. of Law (2d Ed.) 360; Stauffer v. Cincinnati, etc., R. Co., 33 Ind. App. 356, 70 N. E. 543;American Plate Glass Co. v. Nicoson, 34 Ind. App. 643, 73 N. E. 625.

[3][4][5] The averments of the complaint do not show that appellant has any interest in the Vincennes Bridge Company, or that he is a taxpayer in Pike county. The only averments tending to show any interest of appellant are those showing that during the period mentioned in the complaint he was the duly elected, qualified, and acting county surveyor, at all times ready, willing, and capable of performing all the duties required of him as such officer, including those of making plans and specifications for bridges, and the superintending of the building of such bridges. The only thing in which he is shown to have been interested, by said averments, was his employment by the board of commissioners to make the plans and specifications of said bridge, and to superintend the building thereof, and his only complaint is of the board's refusal to employ him to do said work. In this action of the board he had an interest, and if he was not satisfied therewith, he should have availed himself of the remedy given by the statute. Section 9511, Burns 1914, infra. Instead, however, of seeking relief against the action of the board in which he was interested and availing himself of the remedy which the statute, supra, gives him, he seeks to enjoin the carrying out of the contract entered into by said board and its coappellee, the bridge company, on the theory that the refusal of the board to employ him, and its employment of another to do said work, rendered the entire proceeding for the building of said bridge...