State ex rel. Stuart v. Holt

• Decision Date: 28 June 1904
• Docket Number: No. 20,370.,20,370.
• Parties: STATE ex rel. STUART et al. v. HOLT et al.
• Court: Indiana Supreme Court

163 Ind. 198

71 N.E. 653

STATE ex rel. STUART et al.

v.HOLT et al.

No. 20,370.

Supreme Court of Indiana.

June 28, 1904.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Action by the state, on the relation of Romus F. Stuart, and said Stuart, against Sterling R. Holt and others. From a judgment of the Appellate Court affirming a judgment for defendants, relator and plaintiff appeal. Affirmed.

P. W. Bartholomew, C. W. Miller, L. G. Rothschild, C. C. Hadley, and W. C. Geake, for appellants. Wilson & Townley and Hawkins & Smith, for appellees.

HADLEY, J.

Suit by appellants against the principal and sureties on the official bond of the treasurer of Marion county. The board of county commissioners and the county auditor, having declined to bring the action, were made defendants. A demurrer was sustained to the complaint. Appellants refused to plead further, and judgment was rendered against them for costs. That the complaint does not state facts sufficient to constitute a cause of action, and that the plaintiffs, neither jointly nor severally, had legal capacity to sue, are among the special grounds of demurrer. Appellants jointly assign error on the sustaining of the demurrer to their complaint. In the complaint and in the assignment of error the plaintiffs are described as “The State of Indiana ex rel. Romus F. Stuart and Romus F. Stuart.” The view we have taken of the case makes it unnecessary to consider the merits of the complaint, which is very long, and charges many breaches of the treasurer's bond. The controlling question arises upon the special grounds of demurrer above indicated. Romus F. Stuart is suing as relator for public use, and in his individual capacity for personal use, on a bond payable to the state of Indiana, and given to secure, not private, but public funds. The complaint begins and continues thus: “The plaintiffs herein, the state of Indiana ex rel. Romus F. Stuart, and Romus F. Stuart, complain of the defendants herein, and for cause of action allege that Romus F. Stuart is a resident taxpayer and freeholder of Marion county, Indiana, and has so been for ten years last past, and has paid his taxes into the treasury of Marion county all of said time, including the first half of his taxes for 1899. That as such resident taxpayer he has an interest in all moneys paid into, paid out, and belonging to the treasury of Marion county, Indiana, during the years 1893, 1894, and 1895 in common and jointly with all taxpayers of Marion county, Indiana. That the number of resident taxpayers of Marion county, Indiana, is more than fifty thousand, making it impracticable for them to join the plaintiffs herein as coplaintiffs; therefore the plaintiffs bring this action for their own, on behalf of, and for the benefit of all the taxpayers of Marion county, Indiana, and in trust for the county of Marion. That a part of the money sued for in the plaintiffs' complaint belong to the plaintiffs as such taxpayers, and was held and placed in the hands of Sterling R. Holt, the treasurer of Marion county, as custodian for the plaintiffs and all taxpayers of Marion county, and for their use and benefit.” The execution and breaches of the bond, and the refusal of the commissioners and auditor to bring the action are next alleged, and then the following: “The plaintiffs herein have been put to great labor and expense in the preparation and prosecution of this cause and in the employment of legal counsel herein. That a reasonable compensation to remunerate them in the premises is a sum of money equal to 25 per cent. of whatever sums may be recovered on the final settlement and adjudication of this cause. Wherefore plaintiffs demand judgment against the defendants for $90,000 and costs, and plain...