State ex rel. Bear v. Long

• Citation: 174 Ind. 642,92 N.E. 649
• Decision Date: 14 October 1910
• Docket Number: No. 21,602.,21,602.
• Parties: STATE ex rel. BEAR v. LONG, Road Sup'r.
• Court: Supreme Court of Indiana

174 Ind. 642

92 N.E. 649

STATE ex rel. BEAR

v.LONG, Road Sup'r.

No. 21,602.¹

Supreme Court of Indiana.

Oct. 14, 1910.

Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge.

Action by the State, on the relation of Sebastian G. Bear, against Edward Long, Road Supervisor of District No. 3. From a judgment for defendant, relator appeals. Appeal dismissed.

Fred H. Bowers and Milo N. Feichtner, for appellant. Watkins & Butler, for appellee.

MONKS, C. J.

The relator brought this action against appellee, supervisor of road district No. 3, Jackson township, Huntingtoncounty, Ind., to compel him as such officer, by writ of mandamus, to issue said relator a road tax receipt in full for his road taxes. After issues were joined the cause was tried by the court, and over a motion for a new trial final judgment was rendered on November 20, 1909, in favor of appellee. Relator prayed an appeal to this court, and filed his appeal bond within the time allowed, and within 60 days thereafter, on January 21, 1910, filed the transcript and assignment of errors in this court.

It appears, from an affidavit filed by appellee, Long, in this court on April 20, 1910, that his term of office as such road supervisor expired in December, 1909, long before the transcript in this case was filed in this court, and that on the expiration of said term of office, and before said transcript was so filed, one Samuel Wohlfort was appointed road supervisor of said district, and said Wohlfort duly qualified as such successor, and “has been ever since and now is road supervisor of said district.” It is evident that, after said Wohlfort entered upon the discharge of his duties as road supervisor of said road district as the successor of said Long, in December, 1909, said Long no longer had any title or interest in said office of road supervisor of said district, and was not a proper appellee in this appeal at the time the transcript and assignment of errors were filed. At the time said transcript was filed Wohlfort was the proper appellee. Schrader v. State ex rel., 157 Ind. 341, 61 N. E. 721;State ex rel. v. Board, etc., 162 Ind. 580, 588, 68 N. E. 295, 70 N. E. 373, 984. See, also, Fox v. Trinidad Waterworks Co., 7 Colo. App. 401, 43 Pac. 1051, and cases cited; State's Attorney v. Selectmen, 59 Conn. 402, 409, 410, 22 Atl. 336, and authorities cited; Secretary v. McGarrahan, 9 Wall. 298, 19 L. Ed. 579;United States v. Boutwell, 17 Wall. 604, 21 L. Ed. 721;People v. Best, 187 N. Y. 1, 79 N. E. 890, 116...