State ex rel. McGregor v. Cooprider

• Decision Date: 18 June 1884
• Docket Number: 11,268
• Citation: 96 Ind. 279
• Parties: The State, ex rel. McGregor, v. Cooprider, Trustee
• Court: Indiana Supreme Court

96 Ind. 279

The State, ex rel. McGregor, v. Cooprider, Trustee

No. 11,268

Supreme Court of Indiana

June 18, 1884

From the Clay Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to overrule the demurrer to each paragraph of the alternative writ of mandate, and for further proceedings not inconsistent with this opinion.

S. M McGregor, I. M. Compton, G. A. Knight and C. H. Knight, for appellant.

C. F McNutt, E. S. Holliday and G. A. Byrd, for appellee.

OPINION

Howk J.

Upon the verified application of the appellant's relator, William W. McGregor, an alternative writ of mandate was issued in this cause, directed to the appellee, Cooprider, trustee of Harrison School Township. The appellee appeared and demurred to each of the two paragraphs of the alternative writ, upon the ground that it did not state facts sufficient to constitute a cause of action, or to entitle the relator to a peremptory writ of mandate. This demurrer was sustained by the court to each of such paragraphs, and to these rulings the relator excepted, and, declining to amend, judgment was rendered against him for appellee's costs.

Error is assigned here which calls in question the decision of the circuit court in sustaining the appellee's demurrer to each paragraph of the alternative writ of mandate.

In the first paragraph the relator alleged that on the 26th day of March, 1883, he recovered a judgment against said Harrison School Township in the sum of $ 697.75 for services he had rendered such township in teaching school, and in the further sum of $ 119.45 for costs of suit; that such judgment was still in full force, unreversed and wholly unpaid; that the appellee, Cooprider, was the duly elected, qualified and acting trustee of said Harrison School Township, and he then had in his possession, as such trustee, funds of such township for tuition, to wit, the sum of $ 2,239.91, out of which he might pay the relator's judgment; that as such officer, having the necessary and appropriate money on hand with which to pay off and satisfy the relator's judgment, it was the appellee's duty to do so; and that, although the relator had made demand of the appellee, since the said sum of money came into his hands, to pay off and satisfy the relator's judgment, yet he, the appellee, had failed and refused so to do, and the relator further averred that he had no adequate legal remedy by which he could enforce the collection of his judgment, other than by the writ of mandate.

In the second paragraph of the alternative writ the relator alleged that on the 26th day of March, 1883, he recovered a judgment against said Harrison School Township, in the court below, for the sum of $ 697.75, for services he had rendered such township in teaching school in the years 1869, 1870, 1871 and 1872, under the administration of one Robert Dalton, who was, during those years, the duly elected, qualified and acting trustee of said township; that in each of the years named the relator taught a term of school, and for each of the said terms he was to receive the sum of $ 200; that the relator received no part of the several sums of money so earned by him in teaching the said terms of school for said township, but recovered the aforesaid judgment therefor, which said judgment remains in full force, unreversed and wholly unpaid; that the said Robert Dalton, as the trustee of said township during the said years, became a defaulter and had squandered and misappropriated large sums of money belonging to the different funds of said township during his term of office; that afterwards one Peter Barrick, as the successor in office of said Dalton, in a suit on his official bond, recovered a judgment against him and his sureties, in the court below, on the 19th day of June, 1873, in the sum of $ 2,086.75, the amount then due the said township for the various funds from the said Dalton, as such trustee; that in said judgment there was included the sum of $ 836.38, belonging to the common school fund of said township, which has been misappropriated and squandered by said Dalton as aforesaid; that the said judgment, so...