Rowe v. Bateman

• Decision Date: 20 December 1899
• Citation: 153 Ind. 633,55 N.E. 754
• Parties: ROWE et al. v. BATEMAN et al.
• Court: Indiana Supreme Court

153 Ind. 633

55 N.E. 754

ROWE et al.

v.BATEMAN et al.

Supreme Court of Indiana.

Dec. 20, 1899.

Petition by plaintiffs to modify judgment. Granted.

For former opinion, see 54 N. E. 1065.

JORDAN, J.

The lower court in this action adjudged that the defendants recover costs from the plaintiffs (appellants herein). The latter, by the attorney general, have petitioned this court to modify its judgment in this appeal so as to adjudge that no costs be recovered or taxed against them, and to further order the trial court to modify its judgment to the extent that no costs thereunder be adjudged against appellants in that court.

The proceeding, as stated in the original opinion, is based on section 35 of the impeachment act of 1897 (Acts 1897, p. 278); and the accusation filed in the case, it appears, was verified by the oaths of the individual members of the grand jury of the Dekalb circuit court, and also by the oaths of the prosecuting attorney and his deputy; and these persons appear to have been made the plaintiffs in the action below, and are appellants in this appeal. Section 21 of this statute provides that “an accusation in writing against any district, county, township or municipal officer or justice of the peace or prosecuting attorney may be presented by the grand jury of the county for or in which the officer accused is elected or appointed.” Section 22 provides that the accusation must state the offense charged, in ordinary and concise language, without repetition. The next section requires that the written accusation be delivered by the foreman of the grand jury to the prosecuting attorney of the county, except when the latter is the accused officer, and that this official must cause a copy thereof to be served upon the defendant, and that the latter be given a notice in writing, of not less than 10 days, to appear in the circuit court of the county, or in the criminal court, in case the latter court has been established in such county, at the time mentioned in the notice, and answer the accusation. The accusation is required to be filed with the clerk of the court, except when such clerk is the accused person. Section 24 provides that the defendant must appear and answer at the time fixed by the notice, unless the court assigns another day for that purpose, and, in case of the failure of the defendant to appear, the accusation may be heard and determined in his absence. Sections 25-29 relate to the procedure in court after the defendant has appeared. Section 30 provides that the trial must be by a jury, and conducted in all respects in the same manner as a trial upon an indictment for a misdemeanor. Section 31 provides that the prosecuting attorney and the defendant are each entitled to such process, and to enforce the attendance of witnesses, as upon the trial of an indictment. Section 32 provides that the court, upon conviction, must adjudge that the defendant be removed from office. Section 35 is as follows: “When an accusation in writing, verified by the oath of any person, is presented to a circuit court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at any time not more than ten or less than five days from the time the accusation was presented; and on that day, or some other subsequent day not more than twenty days from the time the accusation was presented, must proceed to hear, in a summary manner, the accusation, and evidence offered in support of the same, and the answer and evidence offered by the party accused; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused is deprived of his office, and must enter a judgment for five hundred ($500) dollars in favor of the prosecuting officer, and such costs as are allowed in civil cases.” It will be noted that this latter section designates the grounds upon which the accusation against the officer may be based-First, where he has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office; second, or has refused or neglected to perform the official duties pertaining to his office. The learned attorney general insists that the mere fact that the accusation provided for under section 35 is required to be verified by the oath of some person in his or her individual capacity, instead of being presented under the oath of the grand jurors, as contemplated by section 21 of the act, in no sense makes the verifier a party plaintiff in the action, or in any manner a litigant therein, so as to render him liable for the payment of costs. It is further contended that a proceeding under section 35 is...