Morten v. City of Aurora

• Decision Date: 27 July 1932
• Docket Number: No. 14404.,14404.
• Citation: 182 N.E. 259,96 Ind.App. 203
• Parties: MORTEN v. CITY OF AURORA et al.
• Court: Indiana Appellate Court

96 Ind.App. 203

182 N.E. 259

MORTEN

v.CITY OF AURORA et al.

No. 14404.

Appellate Court of Indiana, in Banc.

July 27, 1932.

Appeal from Dearborn Circuit Court; William D. Ricketts, Judge.

Suit by Frank E. Morten against the City of Aurora, Indiana, and another. From judgment for defendants on demurrer, plaintiff appeals.

Reversed and remanded with instructions in part, and affirmed in part.

Hugh Wickens, of Greensburg, and McMullen & McMullen, of Aurora, for appellant.

C. H. Givan, of Indianapolis, and Crawford A. Peters, of Aurora, for appellees.

WOOD, C. J.

Appellant brought suit against appellees on a second amended complaint in one paragraph to recover the salary attached to the office of clerk-treasurer of the city of Aurora, from April 14, 1926, to February 1, 1928, which it was alleged was wrongfully and unlawfully paid to one Jesse Henry, an unlawful intruder in and ursurper of said office. A separate demurrer to the complaint, on behalf of each of appellees, for want of facts was sustained. Appellant refused to plead further, and judgment was rendered for appellees. From this judgment appellant appeals, assigning as error the sustaining of appellees' separate demurrer to his second amended complaint.

Said complaint, omitting the caption, prayer, and signature of attorneys, was as follows:

“The plaintiff, for second amended complaint, says that heretofore, on the 14th, day of April, 1926, the plaintiff, being eligible thereto, was duly appointed to the office of Clerk-Treasurer of said city of Aurora, by Edward J. Libbert, the Mayor of said city, a vacancy existing in said office at said time.

“That by an ordinance, duly and legally passed by the Common Council of said city of Aurora, prior to the Primary Election held in said city in May, 1926, the offices of Clerk and Treasurer were combined under the title of ‘Clerk-Treasurer’, and said ordinance was in full force and effect at all times thereafter.

“That plaintiff was so appointed to fill said office until his successor should be regularly elected and qualified and that no successor was so elected or qualified until January 6, 1930.

“That immediately upon his appointment as aforesaid, the plaintiff qualified and entered upon and discharged the duties of said office and became entitled thereby to all the fees and emoluments thereof from the time of his said appointment until his successor should be elected and qualified.

“That said plaintiff continued to discharge the duties of his said office but was illegally and unlawfully ousted therefrom by one Jesse Henry, now deceased, and the former husband of the defendant, Hazel Henry.

“That said Jesse Henry had no title to said office at the time he ousted this plaintiff and intruded himself therein, nor during any of the times herein mentioned; that said Henry's sole claim to said office was by virtue of an alleged election, claimed to have been held in said city of Aurora on the - day of November, 1925. That said pretended election was illegal and void, and was so decreed by said Dearborn Circuit Court in an action brought and decided in said court wherein said Henry as a candidate for said office of Clerk-Treasurer was a party and in which judgment was rendered on the 19th, day of April, 1926, decreeing and adjudging that said election and especially as to the office of Clerk-Treasurer as claimed by said Henry was illegal and void and neither said Henry nor any other person were entitled to any right thereunder. That said judgment has since remained at all times in full force and effect and the same was thereafter on the - day of -, 1927, duly affirmed by a judgment of the Supreme Court of Indiana.

“That said defendant, city of Aurora, and all the officers thereof, had full notice and knowledge of said judgment and that during all the time complained of herein, one Erastus W. Cadwell was the acting Mayor of said City, and Roscoe Hilton and John Giffin were members of the Common Council thereof, and all said last named persons were parties to said judgment and decree, holding said election void and of no force and effect. That for some months prior to said election, as well as at the time thereof and afterwards, there were many serious controversies among the citizens of said city as to who were the properly elected and qualified officers of said city resulting in many lawsuits, both civil and criminal, and the circumstances connected with said controversies and lawsuits were common knowledge and general notoriety in the said city and county and elsewhere.

“That immediately after said Henry intruded into said office and ousted this plaintiff therefrom, this plaintiff filed with said city and with the Common Council thereof, his protest in writing, informing said defendants that this plaintiff was claiming and entitled to said office and that any payments to said Henry of salary therefor would be illegal.

“That in said judgment aforesaid, it was further found and decreed that one Edward J. Libbert, was entitled to the office of Mayor of said city at said time and until his successor was duly elected and qualified. That said Edward J. Libbert continued to be the duly elected and qualified Mayor of said City until January 6, 1930, and that this plaintiff was duly appointed Clerk-Treasurer as aforesaid by said Edward J. Libbert as Mayor of said city; and that said defendants had full knowledge of all the facts aforesaid at and during the times herein alleged.

“That the plaintiff continued to be entitled to said office and to receive all fees and emoluments thereof from April 14, 1926, to and including January 6, 1930, at noon. That the fees and emoluments of said office of Clerk-Treasurer for said time amounting to $2420.29 were paid to said Jesse Henry by the defendant, City of Aurora, Indiana, and such payments were so made to said Henry and so received by him with knowledge of all the facts above alleged and pursuant to a conspiracy and agreement between said Henry, said Cadwell and others attempting and pretending to hold possession of the offices of said City unlawfully with intent to cheat this plaintiff and to deprive him of the fees and emoluments thereof.

“That this plaintiff received no fees nor emoluments from said office of Clerk-Treasurer from April 14, 1926, to February 1928, but he has ever and during all said time been ready and willing to discharge the duties of said office, and said salary was paid by said city and received by said Jesse Henry over the written protest of this plaintiff and with knowledge that said payments were illegal; that neither of said defendants acted in good faith in said transactions as above detailed.

“Plaintiff further alleges that said Jesse Henry, during all said time, unlawfully and without right forcibly and against the will and protest and without the consent of this plaintiff, and illegally usurped said office and collected all fees and emoluments thereof until February 1, 1928, notwithstanding that said defendants and said Jesse Henry knew that said occupancy of said office was illegal, in violation of law and the judgment of the Court.

“That, prior to January 1, 1926, said city of Aurora, by an ordinance duly and legally adopted and published, appropriated money for the payment of the fees and emoluments of said office of Clerk-Treasurer, and, during the years 1926, 1927 and 1928 there was existing and unexpended appropriation for the payment of such fees and emoluments.

“That said defendants and each of them have failed and refused to pay to this plaintiff said fees and emoluments due from said office of Clerk-Treasurer as above set forth or any part thereof, although payment of the same was demanded by this plaintiff from said defendants.

“That, after the matters and things herein complained of, viz: On the - day of -, 19-, said Jesse Henry departed this life intestate and that all his estate of every kind and description was taken and appropriated by the defendant Hazel Henry as widow and heir of said decedent, and she now holds possession thereof and no administration of said estate has been had or is now pending.

“That said plaintiff has incurred expense in the sum of Five Hundred ($500.00) Dollars in the prosecution of his said claim against said defendants in attorneys fees and other expenses, which said expenses were necessary and reasonable; that payment of said sums has been demanded by this plaintiff from said defendants and payment thereof refused by them.”

The last clause of the complaint demanding attorney's fees was on motion of appellees stricken out. The correctness of this ruling is not questioned in any manner. We therefore give it no further consideration.

For the purpose of testing the sufficiency of the complaint to state a cause of action, a demurrer admits the truth of all facts well pleaded, but it does not admit conclusions of law, nor all conclusions which may be drawn from such facts by the pleader. Greathouse v. Board of School Commissioners of City of Indianapolis (1926) 198 Ind. 95, 151 N. E. 411.

While there is a conflict among the authorities of the different states, and there seems to be some confusion in the opinions of the courts of our own state on the subject, in...