State ex rel. Salt Creek Civil Township of the County of Monroe v. Stevens

• Citation: 114 N.E. 873,63 Ind.App. 561
• Decision Date: 24 January 1917
• Docket Number: 9,578
• Parties: STATE OF INDIANA, EX REL. SALT CREEK CIVIL TOWNSHIP OF THE COUNTY OF MONROE ET AL. v. STEVENS ET AL
• Court: Indiana Appellate Court

114 N.E. 873

63 Ind.App. 561

STATE OF INDIANA, EX REL. SALT CREEK CIVIL TOWNSHIP OF THE COUNTY OF MONROE ET AL. v. STEVENS ET AL

No. 9,578

Court of Appeals of Indiana

January 24, 1917

From Owen Circuit Court; Robert W. Miers, Judge.

Action by the State of Indiana, on the relation of Salt Creek civil township and Salt Creek school township of the County of Monroe. Plaintiffs appeal from a judgment for defendants, and the latter move to dismiss the appeal.

Motion to dismiss appeal overruled.

Joseph K. Barclay, William M. Louden, Charles B. Waldron and Miller Batman & Blair, for appellants.

East & East, for appellees.

CALDWELL J. Batman, J., not participating.

OPINION

CALDWELL, J.

This action was brought and prosecuted by the State on the relation of the two corporations indicated to recover on three several official bonds, executed by appellee, William F. Stevens, as township trustee. The other appellees were sureties on the bonds. The cause is now before this court on appellees' motion to dismiss the appeal, conceded to be a term-time appeal.

The facts as presented by appellees are as follows: In the complaint and for the most part in the proceedings below, the relators are named as "Salt Creek civil township" and "Salt Creek School Township" of Monroe county Indiana. In the assignment of error, which is several in form, the relators are named as "Salt Creek township of Monroe county, Indiana" and "Salt school township of Monroe county, Indiana". The judgment appealed from is to the effect that the plaintiff and relators take nothing by the complaint and that appellees recover from the relators their costs, and further that appellee William F. Stevens recover of Salt Creek township the sum of $ 67.73 and costs.

It will be observed that in naming the relators in the assignment of errors, the word "civil" is omitted in one case, and the word "Creek" in the other case. On such facts, appellees state their position as follows: "The appeal should be dismissed herein, for the reason that errors are not assigned by the judgment defendants. On the complaint appellees recovered a judgment against the relators, Salt Creek civil township and Salt Creek school township of Monroe county, Indiana. The assignment of errors does not name either of said relators."

We proceed to determine whether or not such defects in the record necessitates a dismissal. There being in Monroe county a township, the name of which is Salt Creek township, it follows by virtue of statute that there is also in that county another corporation exercising dominion over the same territory as the former, but in a different field of activity, being "Salt Creek school township of Monroe county, Indiana." The first is a civil township and the second, a school township. §§ 6404, 6405 Burns 1914, §§ 4437, 4438 R. S. 1881; Carmichael v. Lawrence (1874), 47 Ind. 554. The trustee of the former is, by virtue of his office, trustee of the latter also. § 6405, supra. A statute provides that actions upon official bonds and bonds payable to the State of Indiana shall be brought in the name of the State of Indiana on the relation of the parties interested. § 253 Burns 1914, § 253 R. S. 1881. In such a case the relator is the real party in interest, the state being but a nominal party. 1 Works' Practice § 49 and cases; State, ex rel. v. Wilson (1888), 113 Ind. 501, 15 N.E. 596. The statute, by virtue of which Salt Creek township involved here exists as a body politic and corporate, prescribes that it may sue and be sued by the name of "Salt Creek township of Monroe county." § 9562 Burns 1914, § 5990 R. S. 1881. The corporation existing under such name is the civil township rather than the school township. Baltimore, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 510, 65 N.E. 508. As the word "civil" is not one of the words specified by the statute as constituting the corporate name of a township, it should not be included. However, as the name "Salt Creek township," etc., imports the civil township, the addition of the word "civil" as a qualifying word does not in fact qualify or render either more or less certain the identity of the corporation and body politic to which reference is made. We are able to determine with certainty that Salt Creek civil township named in the proceedings below is the same corporation as is designated in the assignment of errors as Salt Creek township. Such is practically the holding in the case last cited. There, in a proceeding for a writ of mandate, a township was designated as "Washington civil township," etc. In meeting an objection that there is no such township, the Supreme Court says: "While not necessarily required in this case, nevertheless it was proper for the relator to designate himself as trustee of Washington civil township of Daviess county, Indiana. The word 'civil' might have been omitted without detriment to the petition."

Moreover, a political corporation being designated in the assignment of errors as "Salt Creek township" etc., a conclusive presumption arises that the reference is to the civil township. Jarvis v. Robertson (1890), 126 Ind. 281, 26 N.E. 182. Sproat v. State, ex rel. (1914), 182 Ind. 687, 107 N.E. 673. It may be said in addition that the transcript discloses that in the proceedings below, both the terms "Salt Creek civil township" and "Salt Creek township" are used to designate the civil township. Thus, in appellees' application for a change of venue, they designate the civil township as "Salt Creek township," and the judgment in favor of appellee, William F. Stevens, is entered against the civil township under the latter name.

The civil township, as we have said, is a corporation distinct from the school township. Each has its separate duties to perform, and controls and expends its own funds. Either the trustee or the civil township, as relator, may prosecute an action on the bond of a preceding trustee to recover funds belonging to or due the civil...