State ex rel. Marks v. Vogel

• Decision Date: 30 January 1889
• Citation: 19 N.E. 773,117 Ind. 188
• Parties: State ex rel. Marks, Trustee, v. Vogel et al.
• Court: Indiana Supreme Court

117 Ind. 188

19 N.E. 773

State ex rel.Marks, Trustee,

v.Vogel et al.

Supreme Court of Indiana.

January 30, 1889.

Appeal from circuit court, Perry county; George L. Reinhard, Judge.

Action by the state ex rel. Nicholas Marks, trustee of Troy township, Perry county, on the bond of Gottlieb Vogel, formerly trustee of said township. Judgment for defendants. Plaintiff appeals.

E. E. Drumb, for appellant. William Henning and C. H. Mason, for appellees.

Coffey, J.

This was a suit in the court below by the appellant, Marks, as the trustee of Troy township, in Perry county, against appellee Gottlieb Vogel, and his sureties upon his official bond as the former trustee.

The breaches of the bond alleged in the first paragraph of the complaint are that the said Gottlieb Vogel, while in the office as such trustee of Troy township, received of the funds of said township the following amounts, to-wit: $56 belonging to the township fund, $213 belonging to the road fund of said township, and $39 belonging to the special school fund of said township,-in all, the sum of $269; that he had said funds on hand at the time his office ex pired; and that he failed and refused to turn the same over to the appellant, Marks, upon demand, or to any way account for the same.

The breaches in the bond alleged in the second paragraph of the complaint are that the defendant Gottlieb Vogel, while in the office as trustee of Troy township, received $2,000 belonging to the township funds of said township, and $3,000 belonging to the road funds of said township; that he unlawfully employed one Henry Aberding to erect a new bridge over and across Windy creek, in said township, at a cost of $213, not having notified the board of commissioners of the necessity of said bridge, not having procured a survey and estimate thereof, and not having procured an order regulating the erection of the same; that said bridge was erected in such an unskillful and negligent manner that it was worthless, and fell down of its own weight; that the defendant Gottlieb Vogel, as such trustee, well knowing the worthless condition of said bridge, paid the said Henry Aberding for the erection of the same the said sum of $213 out of the road funds of said township; that he unlawfully charged and retained out of the township funds of said township the sum of $56 for superintending the erection of said bridge, and for supervising the opening of a new road; that his report to the board of commissioners claiming credit for said sums was rejected, and said claims disallowed.

The defendant Gottlieb Vogel filed his separate answer to this complaint. The first paragraph is a general denial. The second paragraph is substantially as follows: That, as trustee of Troy township, in said county, he was ordered by the board of commissioners of Perry county, at the special term held in September, 1887, to open a certain road, in first order described, in said township, leading from Tell City to Troy; that not having sufficient road funds on hand, and the means necessary to open said road, the said board agreed to advance whatever funds might be required to perform said work, and ordered the defendant to proceed and construct said road; that, pursuant to said order, he did open said road, and notified the said board of such fact; that said board at once carefully examined said work, and accepted the same, and at its December term, 1887, entered of record an order to that effect, and issued an order in favor of said defendant for the sum of $2,080.28, with which to defray the expenses of said work, and directed him to pay for the same according to his account then exhibited to them, and examined, approved, and allowed by them; that, pursuant to said order and allowance, he paid for said work; that he filed his report as such trustee with said board at the April term thereof, 1888, which included the expense of opening said road and the allowance of said $2,080.28, but that said board, on some wrong and trifling pretense, refused to allow the bill formerly allowed by them of $2,080.28, and by him expended in opening said road, and deducted therefrom $213, which is the same item mentioned in complaint, and for which suit is brought, falsely and wrongfully pretending that said work was not properly constructed; that said item of $213, and an item of $56 for services due defendant for superintending said work, was rejected by said board; that the same is justly due him, together with $20 for services in visiting schools in 1887; and that he is in no manner indebted to said township. Wherefore he files said items of account as a...