State ex rel. Flannigan v. Palmer

• Decision Date: 17 November 1915
• Docket Number: No. 22700.,22700.
• Parties: STATE ex rel. FLANNIGAN et al. v. PALMER, County Auditor.
• Court: Indiana Supreme Court

184 Ind. 7

110 N.E. 213

STATE ex rel. FLANNIGAN et al.

v.PALMER, County Auditor.

No. 22700.

Supreme Court of Indiana.

Nov. 17, 1915.

Appeal from Circuit Court, Orange County; Wm. H. Paynter, Judge.

Mandamus by the State of Indiana, on relation of Luther E. Flannigan and others, against Edward A. Palmer, Auditor of Orange County, Ind. Judgment for defendant, and plaintiffs appeal. Affirmed.John H. Luckett, of English, and W. T. Zenor, of New Albany, for appellants. B. Harvey, Sam R. Lambdin, and McCart & McCart, all of Paoli, for appellee.

LAIRY, J.

This action was brought by appellants to mandate appellee as auditor of Orange county to approve a certain bond which was tendered him, as such auditor, for the purpose of taking an appeal from the final order of the board of commissioners. The trial court sustained a demurrer to the complaint, and appellants refused to plead further, suffering judgment to go against them on demurrer, and appealed to this court, assigning as error the action of the court in sustaining such demurrer.

[1] It is claimed on behalf of appellants that the demurrer filed to the complaint was defective in form and was insufficient for that reason. If this claim be conceded, the judgment should not be reversed on that ground. If the complaint was insufficient for want of facts, it would not constitute reversible error to sustain a demurrer addressed thereto which was itself insufficient in form and substance. Blue v. Capital National Bank, 145 Ind. 518, 43 N. E. 655;Hanson v. Cruse, 155 Ind. 176, 57 N. E. 904.

[2] The final order of the board of commissioners from which appellants attempted to appeal by filing the bond in question was one entered in a proceeding before such board for the improvement of a public highway. Appellants appeared to such proceeding, and unsuccessfully remonstrated against the proposed improvement, and, within 30 days after the final order directing the improvement, they filed with appellee, as auditor, their bond for the purpose of taking an appeal to the circuit court, but appellee refused to approve such bond.

Appellee asserts that no appeal lies to the circuit court from such order, and that the approval of the bond was properly refused for that reason. This question we need not decide. It seems to be conceded that, if a right to appeal existed, it was conferred by either section 6022 or 7793, Burns 1914. The first of such sections provides for the bond to be given in appeals taken under the preceding section of the statute which authorizes appeals in general from boards of commissioners to the circuit court. This section requires a bond to be filed with sufficient penalty and sureties to be approved by the auditor. Section 7793 provides for appeals to the circuit court from boards of commissioners in...