State ex rel. Behymer v. Perry

• Citation: 65 N.E. 528,159 Ind. 508
• Decision Date: 25 November 1902
• Docket Number: 19,799
• Parties: State, ex rel. Behymer, v. Perry, Auditor
• Court: Supreme Court of Indiana

65 N.E. 528

159 Ind. 508

State, ex rel. Behymer, v. Perry, Auditor

No. 19,799

Supreme Court of Indiana

November 25, 1902

From Tipton Circuit Court; L. J. Kirkpatrick, Special Judge.

Mandamus by the State on the relation of John O. Behymer against Elijah Perry, county auditor, to compel the issuance of a warrant. From a judgment for defendant, plaintiff appeals.

Affirmed.

J. M Fippen, J. M. Purvis, Gifford & Gifford, John Oglebay and W. R. Oglebay, for appellant.

Dan Waugh, for appellee.

OPINION

Gillett, J.

This was an action to compel appellee, by mandate, to issue to appellant's relator a warrant in payment of an allowance made to him by the board of commissioners of Tipton county.

The first paragraph of the amended petition contains the allegation that the allowance was for and on account of an indebtedness for the publication of the reports of the receipts and disbursements of the auditor and treasurer of said county for the year ending in June, 1899. The second paragraph of said amended petition alleges the making of an allowance in payment of an indebtedness, the character of which is not stated, while the third paragraph of said amended petition alleges that the allowance was based on an indebtedness for publishing a report of the "receipts and expenditures as made by said board for the year ending June, 1899." The record does not show whether an alternative writ issued. Appellee filed two paragraphs of return. In each of said paragraphs it is alleged that the allowance was not based on a legal claim against said county, for the reason, among others, that the allowance was for publishing the reports made by the auditor and treasurer of said county of their respective receipts and disbursements for said year. Relator unsuccessfully challenged the sufficiency of these paragraphs by demurrer, and, upon the overruling thereof, excepted and refused to plead further.

The paragraphs of return did not allege any new matter in answer to the first paragraph of the amended petition, and, as an answer to the third paragraph of petition, said paragraphs of return only amount to an argumentative denial of a portion of the allegations of said paragraph of petition. It is not error, however, to overrule a demurrer to an argumentative answer or return, if it alleges facts in bar of the action. Oren v. Board, etc., 157 Ind. 158, 60 N.E. 1019, and cases there cited.

It is not contended by appellant's counsel that a board of commissioners has authority to make...