Sherfey & Kidd Co. v. Bd. of Com'rs of Clay Cnty.

• Decision Date: 08 January 1901
• Citation: 26 Ind.App. 66,59 N.E. 186
• Parties: SHERFEY & KIDD CO. v. BOARD OF COM'RS OF CLAY COUNTY.
• Court: Indiana Appellate Court

26 Ind.App. 66

59 N.E. 186

SHERFEY & KIDD CO.

v.BOARD OF COM'RS OF CLAY COUNTY.

Appellate Court of Indiana.

Jan. 8, 1901.

Appeal from circuit court, Clay county; S. M. McGregor, Judge.

Action by the Sherfey & Kidd Company against the board of commissioners of Clay county for the expenses of the interment of indigent persons. From a judgment sustaining a demurrer to the complaint, the plaintiff appeals. Affirmed.

Payne & Payne, for appellant. A. W. Knight, for appellee.

COMSTOCK, J.

Appeal from a judgment in favor of the appellee (defendant below). The complaint is in two paragraphs. Appellee demurred to each paragraph upon two grounds: (1) That neither stated facts sufficient to constitute a cause of action; (2) the court had no jurisdiction of the subject of the action. The demurrer to each paragraph was sustained. This action of the court is the only question presented by this appeal.

In the first paragraph the appellant, a corporation engaged in business as an undertaker and funeral director, seeks to recover of appellee the funeral and burial expenses incurred by it in the burial of one Fugate, an honorably discharged ex-Union soldier, and who at the time of his death was a bona fide resident of Jackson township, Clay county, Ind. In the second it is sought to recover the expenses incurred by it in the burial of one Goodwin, a poor person residing in the same township and county. The first paragraph is based upon sections 8359-8362, Burns' Rev. St. 1894 (sections 6247k-6247n, Horner's Rev. St. 1897). Section 8359, supra, makes it the duty of the township trustees of this state, in their respective townships, to cause to be interred in a respectable manner, in some burial ground other than that used exclusively for the burial of the pauper dead, at an expense not to exceed $50, the body of any honorably discharged ex-Union soldier, sailor, or marine having served in the army or navy of the United States, who shall die a resident of the state not leaving means sufficient to defray the necessary funeral expenses, or having a family in such indigent circumstances that they would be distressed by the expense of such burial. Section 8360, supra, provides that any trustee, before assuming the expense of such burial, must satisfy himself, by careful inquiry into all the circumstances of the case, of the existence of the facts and conditions set out in the preceding section; that he, immediately upon the burial, shall report “his action to the board of commissioners of his respective county, setting forth all the facts, and that he found the family of the deceased person, if he had any, unable to pay the expenses of such burial without being distressed, together with the name, rank and command to which such deceased soldier, sailor or marine belonged; the date of his death, place where buried, and his occupation while living; also, an accurately itemized statement of the expenses incurred by reason of such burial.” Section 8361, supra, makes it the duty of the county commissioners to transcribe in a book kept for that purpose all the facts contained in the report required by the foregoing section. Section 8362, supra, provides that the expenses incurred in such burial shall be allowed by the board of county commissioners, and paid out of the county treasury, the same as other legal charges against the county are allowed and paid. It must be conceded that, in the absence of the foregoing statutory provisions, township trustees would not be authorized to bury deceased soldiers at the public expense, nor the county commissioners to make payment out of the public funds. It follows that where, as in the case at bar, a recovery is sought under the statutes, the facts must be within the law.

In a proper case, it is made the official duty of the trustee to act. This duty is imposed upon him alone. No other officer or person is authorized to make contracts, incur debts, or expend money in the burial of the deceased soldiers. It is only upon the report of the trustee that the commissioners are empowered to pay such expenses out of the...