Perry County Council v. State ex rel. Baertich, 1--173A19

Citation157 Ind.App. 586,301 N.E.2d 219
Decision Date19 September 1973
Docket NumberNo. 1--173A19,1--173A19
PartiesPERRY COUNTY COUNCIL and Board of County Commissioners of Perry County, Indiana, Defendants-Appellants, v. STATE of Indiana on relation of Hester BAERTICH, Plaintiff-Appellee.
CourtCourt of Appeals of Indiana

Norman E. Hay, Birchler & Hay, Cannelton, Charles S. Gleason, Gleason, Woods & Johnson, Indianapolis, for defendants-Appellants.

Gary E. Becker, Zoercher, Becker & Huber, Tell City, for plaintiff-appellee.

LOWDERMILK, Judge.

Plaintiff-appellee brought her action in mandate against defendants-appellants, Board of County Commissioners and County Council of Perry County, Indiana, to mandate said defendants-appellants to appropriate and pay out of public moneys the salary of plaintiff-appellee as public health nurse of Perry County, Indiana, which salary had been duly set by the Perry County Board of Health.

Said Board of Health fixed plaintiff-appellee's compensation for the year of 1971 at Six Thousand Dollars ($6,000.00) and the same amount for the year of 1972.

Afterward, in the respective calendar years of 1971 and 1972 the Perry County Council met in regular session and allowed and appropriated Five Thousand Five Hundred Dollars ($5,500.00) each year for plaintiff's compensation.

Plaintiff-appellee asked for relief as follows: that an order and mandate issue against the defendant Perry County Council to allow and appropriate the sum of One Thousand Dollars ($1,000.00) and they be further mandated to allow and appropriate Fifteen Hundred Dollars ($1,500.00) for plaintiff's legal services and that the Auditor of Perry County be ordered to pay out the damages as prayed for according to law.

The cause was heard by the court without a jury, which handed down special findings of fact and conclusions of law thereon, finding, among other things, that plaintiff-appellee had met all conditions precedent for approval of appropriation of the full amount of compensation fixed by the Board of Health for the years of 1971 and 1972; that plaintiff-appellee was entitled to recover all reasonable attorney fees to date of judgment and for any subsequent proceedings in the cause and that a reasonable attorney fee as of the date of the judgment was One Thousand Three Hundred Fifty Dollars ($1,350.00). The court further found that the defendants were required to allow and appropriate the full amount of the compensation fixed by the Board of Health for the plaintiff-appellee in the years 1971 and 1972.

Defendants-appellants timely filed their motion to correct errors which was by the court overruled and this appeal was perfected.

Defendants-appellants frankly state in their brief that they are not raising a question as to the reasonableness of attorney fees allowed. The question they want this court to decide 'is whether any attorney fees are allowed in a mandate action on the facts of this case.' This was the only issue raised in the motion to correct errors.

The statutes which we believe are applicable to this case and are decisive are as follows:

Ind.Stat.Ann. § 3--2204 (Burns' 1968 Repl.), IC 1971, 34--1--58--4 (the mandate statute):

'Issues--Proceedings.--Said action for mandate shall stand for issue and trial, and issues of law and fact may be joined, and amendments, continuances and appeals granted therein, as in other civil actions; and in rendering final judgments in said action, if the finding and judgments be for the plaintiff, the court shall grant and adjudge to the plaintiff such relief, and such only, as he may be entitled to under the law and facts in such actions, together with damages as in actions for false returns, and costs shall be awarded as the court may direct.'

Ind.Stat.Ann. § 2--4105 (Burns' 1968 Repl), IC 1971, 34--1--40--3:

'Neglect to return--Liability of sheriff.--If any sheriff shall neglect or refuse to return any execution as required by law, or shall make a false return thereon, he shall be amerced in such amount as he might and should have levied by virtue of the execution.'

Ind.Stat.Ann. § 2--4106 (Burns' 1968 Repl.), IC 1971, 34--1--40--5:

'Further liability of sheriff.--In all cases specified in the last three sections, the plaintiff shall, in addition to the amercement, recover of the officer legal interest, damages not exceeding ten percent (10%) on the principal sum...

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  • Hess Const. Co. v. Board of Educ. of Prince George's County
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...Indiana Alcoholic Beverage Comm'n v. State ex rel. Harmon, 269 Ind. 48, 379 N.E.2d 140 (1978); Perry County Council v. State ex rel. Baertich, 157 Ind.App. 586, 301 N.E.2d 219 (1973); Fownes v. Hubbard Broadcasting, Inc., 310 Minn. 540, 246 N.W.2d 700 (1976); Yates v. Durk, 464 S.W.2d 43 (M......
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