Murphy v. Oren

• Decision Date: 08 November 1889
• Citation: 22 N.E. 739,121 Ind. 59
• Parties: Murphy v. Oren.
• Court: Indiana Supreme Court

121 Ind. 59

22 N.E. 739

Murphy

v.Oren.

Supreme Court of Indiana.

Nov. 8, 1889.

Appeal from circuit court, Wabash county; James M. Brown, Judge pro tem.

This action was brought by Reuben Murphy against George Oren, and, upon judgment for the defendant, plaintiff appeals. The facts appear in the opinion.

Kidd & Hunter, B. F. Williams, and Alvah Taylor, for appellant. Warren G. Sayre, for appellee.

Elliott, C. J.

Murphy prosecutes this action against Oren, his predecessor in the office of township trustee, for the recovery of $630, which he alleges the outgoing trustee failed to pay over on demand. The second paragraph of Oren's answer alleges that Murphy made a written report to the board of commissioners, wherein he claimed credit for the same money as that for which he sues; that the report was examined and approved, the claim allowed, and credit given him; that the judgment of the board of commissioners remains in full force. The answer does not, as the argument of appellant's counsel tacitly assumes, proceed upon the theory that the judgment of the commissioners constitutes a former adjudication. The report upon which the board acted was not that of the appellee, but that of the appellant. It appears, from this answer, that the appellant has received credit for the sums of money he now seeks to recover; and the question is whether, having been allowed credit in due form and by the propor authorities, he can maintain an action without having the order allowing him credit set aside, or showing why the settlement it evidences should be disregarded. Prima facie, at least, the settlement with the board of commissioners is valid, and while it remains in force it must be held that the outgoing trustee duly accounted to his successor, and that he likewise duly accounted to the proper authorities. We do not hold that the order of the board of commissioners approving the report was conclusive; but we do hold that it operates as long as it is in force, and is not affirmatively shown to be the result of a mistake or fraud, to preclude the appellant from maintaining this action. We have no doubt that if Oren did actually owe the township the money, and the appellant did improperly settle with him, the order of the board allowing the credit to the appellant may be annulled or disregarded. To this answer the appellant replied substantially as follows: That he and Oren did have a settlement; that he did report to the board of commissioners, as alleged in the answer; that the items included in the report, and for which he receipted, were sums of money paid out by Oren, one of which sums was for $448.98 overpaid on the “road funds,” the other of which was for $154.98 overpaid on the “dog-tax fund;” that his term of office expired on the 11th day of April, 1882; that during the appellee's term of office he misappropriated the sum of $630; that at the time the appellant settled with him he (the appellee) was indebted to certain of the township funds for that sum; that the appellant, at the request of the appellee, accounted to the township for that sum; that Navon F. Gudley was the appellant's successor in office; that on the 10th day of April, 1882, the appellant made a written report to the board of commissioners, which was approved; that his successor, Gudley, sued him and his sureties on his official bond; that in the answers to the complaint the appellant and his sureties claimed credit for the amount for which he had credited Oren,-$448.98 overpaid on “the road funds,” and $154.98 overpaid on the “dog fund;” that the circuit court, in which the action was brought, rendered judgment against the appellant and his sureties, and that the judgment charged them with $423.91 due the dog fund, and $244.46 due the road-tax fund.

We have no doubt that the appellant might avoid the settlement made by him with the board of commissioners;...