Modlin v. Bd. of Com'rs of Grant Cnty.

• Decision Date: 18 December 1913
• Docket Number: No. 8,769.,8,769.
• Citation: 55 Ind.App. 239,103 N.E. 506
• Parties: MODLIN et al. v. BOARD OF COM'RS OF GRANT COUNTY.
• Court: Indiana Appellate Court

55 Ind.App. 239

103 N.E. 506

MODLIN et al.

v.BOARD OF COM'RS OF GRANT COUNTY.

No. 8,769.

Appellate Court of Indiana, Division No. 1.

Dec. 18, 1913.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Suit by Hiram C. Modlin and another against the Board of Commissioners of Grant County. From a judgment for defendant, plaintiffs appeal. Appeal dismissed.Elias Bundy, of Marion, for appellants. Hiram Brownlee and Orlo L. Cline, of Marion, for appellee.

FELT, J.

On March 6, 1909, the board of commissioners of Grant county, Ind., in a regular proceeding, after due notice awarded to Hiram C. and Nathan P. Modlin, doing business under the name of Modlin Bros., the contract for the construction of a certain macadam road for the sum of $10,247. A bond was duly given for the completion of the road according to the plans and specifications adopted therefor. There was no contract other than that which resulted from the acceptance of the bid by the board. The notice to bidders stated that the work should be completed by November 1, 1909. On September 23, 1909, the proceeds from the sale of bonds issued to provide funds for the building of said road were available. No actual work on said road was done by said Modlin Bros. Thereafter, by another notice duly given by said board of commissioners, said work was advertised to be relet on May 3, 1910. On February 16, 1910, this suit was brought to enjoin appellee, the board of commissioners of Grant county, from reletting said contract. The appellants obtained a temporary restraining order, and thereafter, on March 24, 1910, a demurrer for want of sufficient facts was sustained to appellants' complaint, and on refusing to plead over judgment was duly rendered against them for costs. An appeal from said judgment was taken and perfected on January 30, 1911. Appellees have filed a verified motion to dismiss the appeal. The motion in substance shows the rendition of the judgment as aforesaid; that the only relief prayed for was an injunction against appellee to prevent the reletting of said contract; that 40 days after the rendition of said judgment, and before any appeal was taken therefrom, upon due notice, appellee on May 3, 1910, relet said contract to the firm of Alexander & Crosby for the sum of $8,539; that they gave bond for the due performance of said work in accordance with the profile, plans, and specifications adopted therefor; that they entered upon said work at once and completed the same in accordance with the profile, plans, and specifications aforesaid, and on August 24, 1910, the duly authorized superintendent and engineer filed with the auditor of Grant county, Ind., his verified report showing that said road had been completed in accordance with said plans and specifications; that thereafter, on September 5, 1910, said board in regular session found that said road had been duly completed, accepted the same, and ordered the auditor to issue a warrant to said contractors for the balance due on the contract for the construction of said road, which was done; that the acts sought to be enjoined by this suit have been consummated, and, if the judgment of the lower court should be reversed, no injunction could be granted the appellants. The only relief demanded by the complaint is an injunction to enjoin the letting of a contract which has been let, the work completed, accepted by the proper authorities, and paid for in full.

[1] If a reversal should be obtained, no injunctive relief could be granted, and the complaint could not be amended so as to entitle appellants to damage for the reason that, in the letting of such contracts, the board of commissioners does not act in a corporate capacity but represents the sovereign power of the...