State ex rel. McGuyer v. Huff

• Decision Date: 19 February 1909
• Docket Number: 21,345
• Citation: 87 N.E. 141,172 Ind. 1
• Parties: The State of Indiana, ex rel. McGuyer, v. Huff
• Court: Indiana Supreme Court

87 N.E. 141

172 Ind. 1

The State of Indiana, ex rel. McGuyer, v. Huff

No. 21,345

Supreme Court of Indiana

February 19, 1909

From Martin Circuit Court; J. T. Rogers, Special Judge.

Action by The State of Indiana, on the relation of Walter McGuyer against John R. Huff. From a judgment for defendant plaintiff appeals.

Reversed.

Frank E. Gilkison, for appellant.

OPINION

Myers, J.

The complaint alleges the election of relator to the office of assessor of Mitcheltree township in Martin county, Indiana, at the general election of 1904, his eligibility and qualification, and the discharge of his duties as such until February, 1907, when upon demand upon the auditor for the necessary and prescribed assessor's books, blanks and other papers they were refused him; that the auditor had attempted to appoint appellee as assessor, and had accepted and approved a pretended bond tendered by appellee, and administered a pretended oath of office to appellee and delivered to him all the plats, books, blanks, papers and other official supplies for the assessor of said township, and recognized appellee as the assessor of said township; that on February 27, 1907, relator demanded from appellee the surrender to relator of all the plats, books, blanks, papers and other supplies for the assessor of said township, which appellee had in his possession, and that he deliver up the office to relator, all of which appellee refused, and has usurped and intruded into such office, and since said time has continued illegally and wrongfully to hold said office, to the great damage of relator, who is the assessor of said township and entitled to exercise the functions and perform the duties of said office. Prayer that relator be declared the true, acting and legal assessor, and that appellee be declared a usurper, and that he be ordered to turn over all books, plats and blanks appertaining to such office to relator, and for $ 100 damages.

Appellee answered in two paragraphs: One paragraph admitting the election of relator as assessor at the general election of 1904, and his qualification and discharge of the duties until December 15, 1906, "at which said time he voluntarily abandoned said office and left the State of Indiana, with the avowed purpose of remaining away permanently," and alleging the appointment, January 29, 1907, of appellee to fill the unexpired term of relator, appellee's eligibility, qualification and entry upon the duties of his office, and his continuance in discharge of those duties under such appointment. The second paragraph alleges the written resignation of relator submitted to the board of commissioners on December 15, 1906, and its acceptance, the appointment of a successor by the board and such appointee's failure to qualify, the eligibility of appellee, his appointment by the auditor, his qualification, etc., and that he is acting by virtue of such appointment.

The demurrer of appellant to each of these answers was overruled, and exceptions reserved. There was a reply in general denial, a trial, finding and judgment for appellee.

Appellant assigns error upon the rulings upon demurrer to the answers, and in overruling the motion for a new trial. We have not been favored with a brief from appellee, and would be justified in reversing the judgment, instead of being thereby forced to examine this record for ourselves, to determine whether there are any grounds of affirmance.

The form of the demurrer to the answer is that "neither of said paragraphs of answer contains facts sufficient to constitute an answer to plaintiff's complaint and information." This form presents no question. It is not a question whether the facts are sufficient to constitute an answer, but whether, taken as a whole, the pleading states facts sufficient to constitute a defense to the action. It might state facts sufficient to constitute a partial answer, or an answer to so much of the complaint, if so pleaded, but if addressed to the whole complaint it must challenge the whole, as pleaded, and if pleaded as a defense, the question is whether, so pleaded, it constitutes a defense to the action. The code provides for but one form of demurrer to an answer, and it must be substantially followed. 1 Woollen, Trial Proc., §§ 1677, 1678.

The motion for a new trial challenges the sufficiency of the evidence to support the finding, and also the admissibility of certain evidence introduced. Relator, being about to make a trip to California in December, 1906, addressed the following communication to the board of commissioners of the county of Martin:

"December 15, 1906.

To the Board of Commissioners of the County of Martin.

This is to certify that I, assessor of Mitcheltree township, do hereby ask you to appoint Robert C. Armstrong as my successor, as assessor of said township. If you cannot appoint him as my successor, I decline to resign, and will have him appointed as my first deputy.

Walter McGuyer, Mitcheltree Township Assessor."

This paper he delivered to Armstrong, who in turn delivered it to one of the members of the board, when not in session, or to the auditor. There is some conflict in the evidence as to whether the paper was delivered by Armstrong to the auditor, or by one of the members of the board. It bore the auditor's file mark, and was presented to the board, and an order entered on December 31, 1906, as follows: "Comes now Walter McGuyer, assessor of Mitcheltree township, and presents his resignation of said office of assessor, effective at once. Ordered by the board that the same be and is hereby accepted, and further ordered that Robert C. Armstrong be, and he is hereby, appointed assessor of Mitcheltree township to fill the unexpired term of Walter McGuyer."

On January 29, 1906, the auditor of Martin county, after reciting that relator, the former assessor, had tendered his resignation to the county commissioners, and removed from the State, and the commissioners had appointed Armstrong, who was at the time ineligible, and that the office was vacant, appointed appellee to fill the unexpired term of relator, and appellee took the oath of office, qualified, and has since acted. The parol evidence shows no intention on the part of relator to remain in California, or to abandon his residence in Mitcheltree township, but shows an intention to return not later than March ensuing, unless the board should appoint Armstrong as his successor, or he should appoint Armstrong as his deputy, and then not later than March 15, 1907. There appears to have been some communication between relator and the commissioners prior to December 15, 1906, in regard to his going away, and in regard to his selection of a deputy, and there was an impression that the commissioners might have something to do with his appointing a deputy, in case they could not appoint a successor, or that he had to be present to appoint one himself, and it appears from the evidence that he supposed, until after the appointment of appellee, that Armstrong had been selected as his deputy, when he learned of it through a county paper. As early as January 20, 1907, relator had made preparations to return from California. On February 18, 1907, he wrote from California to the auditor of Martin county:

"I should have written you before, but have failed. I will leave to-morrow for Indiana to do my work as an assessor, as Mr. Armstrong failed to qualify, and my resignation which I sent was to the effect that if he did not serve, I was not to be considered as resigning. I will be at Shoals on March 1."

He returned February 26. The...