Schroeder v. City of New Albany
| Decision Date | 21 February 1930 |
| Docket Number | No. 13833.,13833. |
| Parties | SCHROEDER v. CITY OF NEW ALBANY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Floyd Circuit Court; John M. Paris, Judge.
Action by Walter D. Schroeder against the City of New Albany. Judgment for defendant, and plaintiff appeals. Affirmed.
Claude B. McBride and Jonas G. Howard, both of Jeffersonville, for appellant.
Charles R. Turner, City Atty., and Stotsenburg, Weathers & Minton, all of New Albany, for appellee.
Action by appellant against appellee to recover for alleged overtime while appellant was a member of the paid fire department of appellee city. Appellant was regularly paid the regular wages fixed by the city for the pay of its firemen, but by this action seeks to recover the additional amount of $3,510.
The complaint was in one paragraph to which the court sustained a demurrer, and appellant refusing to plead further, judgment was rendered against him. The sustaining of such demurrer is the only error presented.
The facts stated in the complaint upon which appellant bases his right to recover are as follows: Appellant was a member of the paid fire department of appellee city from February 1, 1923, until January 3, 1926. The city has a population of more than 15,000 as disclosed by the last preceding census, and has had a paid fire department for over 10 years.
From January 1, 1921, to January 1, 1927, the organized fire force of said city consisted of one body or platoon, which did both day and night service.
From February 1, 1923, to January 3, 1926, appellant worked continuously as a member of the regularly organized and paid fire force, and during said period he was a member of said single platoon which did both day and night service, and in the performance of these duties he worked 24 hours in every calendar day. During the period from February 1, 1923, to January 3, 1926, appellant performed service as a member of the regular paid fire force both during the day and night, and thus in pursuance of the act of 1920, Acts Sp. Sess. 1920, p. 196, c. 57, he performed 2 statutory days' service in each calendar day.
It is then averred that each statutory day's service was separate and distinct and that he is entitled to compensation for 2 statutory days' service for each calendar day in said period. During all of said period he was paid for only 1 statutory day's service for each calendar day. He was paid for 1,052 statutory days, $3,510, and that amount is still due him for 1,052 statutory days' service performed at the instance of appellee. The compensation paid to each member of the fire force was $3.33 1/3 per day and $3,510 is now due him.
[1] Appellee contends that the amended complaint is insufficient because it fails to allege that there was any appropriation made, available and in force at the time of the performance of alleged services, and out of which it could be paid. There is merit in this contention. The court judicially knows that the city of New Albany is a city of the third class operating under the Municipal Code of 1905. State ex rel. Schroeder v. Morris, 199 Ind....
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