Shuck v. State ex rel. Cope
| Decision Date | 12 December 1893 |
| Docket Number | 16,796 |
| Citation | 35 N.E. 993,136 Ind. 63 |
| Parties | Shuck v. The State, ex rel. Cope |
| Court | Indiana Supreme Court |
From the Jennings Circuit Court.
Cause is reversed, and the cause remanded, with instructions to the court to render judgment for appellant.
W. New J. Overmyer and F. E. Little, for appellant.
G. F Lawrence, A. C. Harris, L. A. Cox and B. F. Tweedy, for appellee.
The facts involved in this case are as follows:
On the 17th day of August, 1885, the appellant, William A. Shuck was appointed treasurer of Jennings county, Indiana, to fill a vacancy caused by the death of Charles Gautier. Appellant qualified and entered upon the discharge of his duties as such treasurer on the 9th day of November, 1885, and served in said trust until the 18th day of November, 1886, when he made settlement with the board of commissioners of said county, and with one John D. Kidd, who had been elected as his successor, paid over to said Kidd the full amount of money then found to be in his hands or chargeable to him, and turned the office of treasurer over to said Kidd.
At the November election, in 1886, the appellee's relator, John C. Cope, was elected auditor of Jennings county for four years, and until his successor should be elected and qualified.
In the political campaign of 1890 the appellant, Shuck, was the nominee of his party and a candidate for auditor of said county, and the appellee's relator was a candidate for reelection thereto and the chief competitor of said Shuck. At the November election, of said year, the appellant, Shuck, received the highest number of votes cast for said office, and was duly declared elected by the board of canvassers of said county. The result of the election was certified, as provided by law.
Immediately after the election, to wit: On and after November 7th, 1890 John D. Kidd, the then county treasurer, filed with the governor of the State of Indiana, sworn statements that Shuck, as an ex-county treasurer, was a defaulter in the sum of $ 1,884.06. Upon these sworn statements the governor declined to issue a commission to the appellant on the ground that he was ineligible to hold the office under section 10, article 2, of constitution of this State.
On November 20th, 1890, appellant called upon the said county treasurer, at his office, and inquired how much it was claimed he was short in his accounts as former treasurer. Kidd responded that the amount was $ 2,357.66. Appellant went and got the money, returned and paid it over to said Kidd, taking a receipt for the same.
Shuck, at the time, stated that he did not owe anything, but paid it under protest, simply that he might get his commission, which was being withheld from him by false charges. With this receipt Shuck then demanded his commission from the governor, but the county treasurer then claimed that his shortage was $ 4,854.84, and the commission was still withheld. The official bond of appellant, as auditor of said county, was filed on November 18th, 1890, but the board of commissioners refused to approve it because the appellant had no commission from the governor. Meanwhile Cope had held the office of auditor, excluding the appellant therefrom, and so continued to do until the 9th day of December, 1891, when the board approved the appellant's bond as auditor, and he at once entered upon the discharge of his duties.
After the approval of Shuck's bond and his entering upon said service as stated, the relator brought the suit at bar, which was tried by a jury in Jennings county, and on the 17th day of June, 1892, a general verdict was rendered by the jury in favor of the appellant. The jury also answered special interrogatories, and on the 14th day of October, 1892, the court, on the relator's motion, rendered judgment in his favor on the answers to the special interrogatories, notwithstanding the general verdict.
From this judgment the defendant, Shuck, appealed.
The errors assigned are seven in number, the first, second, third, and fourth of which relate to rulings upon certain paragraphs of the pleadings, and the seventh to the overruling of the appellant's motion for a new trial. The fifth specification is that the court erred in overruling appellant's motion for judgment in his favor on the general verdict of the jury and on the pleadings in said cause, and the sixth is that the court erred in sustaining appellee's motion for judgment in his favor upon the special findings and answers to the interrogatories, notwithstanding the general verdict.
As to the issues in this cause, the record discloses the following facts:
The first paragraph of the complaint was withdrawn and is in no way in the case.
The second paragraph essentially states that the relator, Cope, being eligible, etc., was in November, 1886, elected auditor of Jennings county, and duly qualified; that in November, 1890, relator and the appellant, and one Williams, were candidates at the then pending election for said office; that Shuck received the highest number of votes, and Cope the next highest number, but that Shuck was ineligible to hold the office of auditor on November 13th, 1890, and so continued to be the entire day by reason of section 91 of the constitution of Indiana, for that Shuck had held the office of county treasurer from the 9th day of November, 1885, to the 18th day of November, 1886, and had not accounted for the money then in his hands as county treasurer. Wherefore, the said relator herein says that the votes cast for said William A. Shuck can not be counted, and therefore said relator, in fact and in law, received the highest number of votes at said November, 1890, election for said office of auditor of said county, and was therefore elected to the term of said office, beginning on the 13th day of November, 1890; that he went into office November 13th, 1886, gave the additional bond required by the act of 1889, and continued in office until the 9th day of December, 1891, when it is alleged that Shuck took the office by force, but was never commissioned by the governor; that the relator applied to the governor for a commission for the term beginning November 13th, 1890, but the commission was refused; that, by reason of all the facts herein stated, he was and had been lawfully entitled to a commission ever since the said November election, and is now so entitled, and is now the legal and lawful auditor in and for said county and State, for four years from November 13th, 1890. Then follows a prayer for damages and that the relator have possession of said office.
The third paragraph of the complaint, in substance, is that Cope was elected auditor in 1886 for four years from the 13th day of November, 1886, and until his successor should be elected and qualified, and that said Cope duly qualified; that by virtue of said election in November, 1886, relator took possession of said office of auditor until December 9th, 1891, when Shuck, who was a candidate for auditor at the November election in 1890, and who received the highest number of votes, claiming by virtue thereof, and by virtue of the approval of his bond as such auditor, by the board of commissioners of said county, to have the right to hold said office, took possession of said office by force; that Shuck has never been commissioned by the governor, and that therefore the acceptance and approval of his bond were void. Wherefore, relator says he is entitled to hold said office till his successor shall have been elected and qualified.
The fourth paragraph is like the third, except it is alleged therein that in November, 1890, Shuck, with others, duly executed his bond as such auditor, in the penal sum of ten thousand dollars, and that, on the 9th day of December, 1891, in the absence of the sureties on said bond, Shuck, by his attorney, struck out the word "commissioned" from said bond, before it was accepted and approved.
Separate demurrers were filed by the defendant to each paragraph of the complaint, which were overruled, and the defendant excepted.
To this complaint Shuck filed an answer in four paragraphs; the first being in general denial. The second averred that Shuck was treasurer of said county from November 9, 1885, to November 18, 1886, but made full settlement with Kidd, his successor and was never, at any time, in default; that he was elected auditor of said county at the November election of 1890, and qualified in due time; that owing to the machinations of the relator, Cope, no commission was issued to him, but that on December 9, 1891, the board of commissioners approved the bond which had been duly executed by him and his sureties, and duly filed for approval on November 18, 1890, and that the defendant then entered peaceably on the discharge of the duties of his office as auditor. The third paragraph recites the same facts as the second, and, in addition thereto, that on the 20th day of November, 1890, to relieve himself of the charge that had been made against him, that he was a defaulter, so that he might procure his commission, he paid over to Kidd, then county treasurer, the sum of $ 2,357.66, being the full amount claimed to be due from him; that he paid this money under protest, denying that he owed any part of it; that if by any possibility there had been any error in the settlement made with his successor, as county treasurer, the sum so paid over far exceeded any such error, and that the 20th day of November, 1890, was before the beginning of the term of office, as auditor, for which he had been elected. The fourth paragraph of answer is like the third, except it is alleged that the 20th day of November, 1890, on which the said sum of $ 2,357.66 was paid over to said Kidd, as above stated, was before the...
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