Myers v. Gibson
| Decision Date | 26 April 1899 |
| Docket Number | 18,610 |
| Citation | 53 N.E. 646,152 Ind. 500 |
| Parties | Myers v. Gibson |
| Court | Indiana Supreme Court |
From the Miami Circuit Court.
Reversed.
Enoch Myers and J. F. Lawrence, for appellant.
I Conner, J. Rowley, W. C. Bailey, C. A. Cole and Mitchell Antrim & McClintock, for appellee.
Appellee, on June 1, 1897, filed with the auditor of Fulton county a claim, on account of the sub-basement under the court-house, for $ 19,996.42, in which the work and labor done and material furnished were specifically itemized. On August 13, 1897, he filed a claim for $ 20,000 "for basement under court-house." At the September term, 1897, of the board of commissioners of said county, said claims which were for extra work in the basement of the court-house were examined by the board, and appellee was allowed $ 18,624.17 thereon. Appellant, a taxpayer of said county, made the proper affidavit, and appealed to the circuit court from said allowance. On application of appellee the venue was changed to the court below, where an amended answer in two paragraphs, denying the jurisdiction of the board of commissioners, duly verified, was filed by appellant. The first paragraph shows that a claim for the same work and material had been filed by appellee with, and disallowed by the board of commissioners of Fulton county in 1896, and that no appeal had been taken by appellee from the decision of said board disallowing said claim; nor had he ever brought any action against the board of commissioners of Fulton county on said claim or account, except to file the claim for the same work and material with the auditor of Fulton county for presentation to the board of commissioners for allowance, which said board allowed at $ 18,624.17, and from which allowance this appeal was taken. The second paragraph of said answer, denying the jurisdiction of the board of commissioners, alleges that when said claim was allowed by the board of commissioners at $ 18,624.17, from which allowance of the board appellant appealed, no competent proof thereof was adduced before said board in favor or in support thereof, as is required in other courts; nor was the fact, if it be a fact, that the truth of such charges was known to the board of commissioners, entered of record in the proceedings of said board about said claim. Demurrer for want of facts was sustained to said answer to the jurisdiction, and appellant set up the same facts in bar of the action, to which a demurrer for want of facts was sustained; and appellant refusing to plead further, the court rendered judgment against Fulton county for $ 20,462.98, and for cost against appellant.
Appellee insists that the first paragraph of the verified amended answer, denying the jurisdiction of the board, did not show that said board had jurisdiction to act on the claim disallowed in 1896, and that it was therefore insufficient, and the demurrer thereto was properly sustained. The first paragraph of said answer to the jurisdiction alleged that the claim set out in said paragraph, for material furnished and work and labor done, in the construction and completion of the new court-house recently erected by appellant at Rochester, in Fulton county, Indiana, was filed with the county auditor, and by him presented to the board of commissioners while in lawful session, and that the same was disallowed by the board. The filing of the claim set out in said paragraph with the auditor, and his presenting the same to the board, was all the statute required to give the board jurisdiction to act thereon. The fact that the claim as filed in 1897 was more specific than the one acted upon in 1896 is immaterial, as it is alleged that they were for the same work and material.
The second paragraph of the amended answer to the jurisdiction was clearly bad. Even if the facts stated in said paragraph show that said allowance was void, on account of the failure of the board of commissioners to comply with the requirements of section 7848 Burns 1894, section 5761 Horner 1897, which we need not and do not decide, they do not show that the board did not have jurisdiction to act upon the claim; and as the allowance was vacated by the appeal, and no longer existed, the claim, so far as shown by said paragraph, was pending in the court below for trial de novo. State, ex rel. v. Brewer, 64 Ind. 131; Wright v. Wetson, 95 Ind. 408, 410, 411.
The controlling question presented by this appeal is whether the board of commissioners of Fulton county, after having disallowed said claim, had the power at a subsequent session--appellee having filed a claim for the same work and labor--to allow the same. By the act of 1879, Acts 1879, p. 106, being section 5758, 5759, 5760, 5769, R. S. 1881, it was provided, in substance, that any person who should thereafter have a legal claim against any county should file the same with the county auditor, to be by him presented to the board of commissioners, and the commissioners were required to examine the claim and allow or disallow the same in whole or in part, as they may find it just and owing. Any person or corporation feeling aggrieved with the decision was allowed an appeal to the circuit court. It was also provided, by section four of said act, being section 5760 R. S. 1881, section 7847 Burns 1894, that, "No court shall have original jurisdiction of any claim against any county in this State in any manner except as provided for in this act." It is clear that under said act of 1879, being section 5758, 5759, 5760, 5769 R. S. 1881, boards of commissioners had exclusive original jurisdiction of all claims against the county, and that no court could acquire jurisdiction of a claim against the county except by appeal from the decision of the board. It was uniformly held under said act that when a claim was filed before a board of commissioners, and disallowed in whole or in part, the only remedy of the claimant was to appeal from the action of the board. No independent suit could be maintained on said claim in any court, nor could the claimant again file the claim before the board and be entitled to an allowance of the same in whole or in part. Bass Foundry, etc., v. Board, etc., 141 Ind. 68, 32 N.E. 1125; State, ex rel., v. Board, etc., 101 Ind. 69; Maxwell v. Board, etc., 119 Ind. 20, 19 N.E. 617; Board, etc., v. Maxwell, 101 Ind. 268; Pfaff v. State, ex rel., 94 Ind. 529; Board, etc., v. Applewhite, 62 Ind. 464.
In 1885 (Acts 1885 p. 80), section three of the act of 1879, being section 5769 R. S. 1881, was amended, so that since said amendment, being section 7856 Burns 1894, section 5769 Horner 1897, if the claim is disallowed in whole or in part, the claimant may either appeal therefrom, or bring an action on said claim against the county in its corporate name. Bass Foundry, etc., v. Board, etc., 115 Ind. 234, 239, 240; Myers v. Gibson, 147 Ind. 452, 456, 46 N.E. 914. The only change made by the amendment of 1885 was to give a claimant, in addition to his right of appeal, the right to bring an action on the claim against the county in its corporate name. So that, after the taking effect of the amendment of 1885, the claimant, if his claim was disallowed in whole or in part, had two remedies, instead of one, as...
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