State ex rel. Wiles v. Spinney

• Decision Date: 07 March 1906
• Docket Number: No. 20,693.,20,693.
• Citation: 166 Ind. 282,76 N.E. 971
• Parties: STATE ex rel. WILES, Town Treasurer, v. SPINNEY, County Treasurer.
• Court: Indiana Supreme Court

166 Ind. 282

76 N.E. 971

STATE ex rel. WILES, Town Treasurer,

v.SPINNEY, County Treasurer.

No. 20,693.

Supreme Court of Indiana.

March 7, 1906.

Appeal from Circuit Court, Newton County; Charles W. Hanley, Judge.

Mandamus by the state, on the relation of Lawrence A. Wiles, treasurer of the town of Goodland, against Charles W. Spinney, treasurer of Newton county. From a judgment in favor of respondent, relator appeals. Affirmed.C. E. Thompson and George D. Parks, for appellant. E. B. Sellers and William Darroch, for appellee.

MONKS, J.

This action was commenced to compel by writ of mandamus one Frank M. Coovert as treasurer of Newton county to pay a balance claimed to be due on three several warrants issued by the auditor of said county in favor of the relator. Thereafter appellee, Charles W. Spinney, having succeeded to said office of county treasurer, was substituted as a defendant instead of said Coovert. Appellee filed a return to the alternative writ in three paragraphs. Appellant's demurrer to the first and second paragraphs of return was sustained to the first and overruled to the second. The court made special findings of facts and stated conclusions of law thereon in favor of appellee, and over a motion for a new trial rendered judgment thereon against appellant. The assignment of error calls in question each conclusion of law, and the action of the court in overruling appellant's demurrer to the second paragraph of appellee's return to the alternative writ, and in overruling appellant's motion for a new trial. As the exceptions to the conclusions of law present the same question as that presented by the action of the court in overruling appellant's demurrer to the second paragraph of the return, it is only necessary to determine as to the correctness of the conclusions of law, for such decision necessarily determines the sufficiency of said return. Goodwine v. Cadwallader, 158 Ind. 202, 205, 61 N. E. 939;Ross v. Van Natta, 164 Ind. 557, 558, 74 N. E. 10, and cases cited.

It appears from the special findings: That in 1899 one Gilman was duly elected treasurer of the incorporated town of Goodland, in this state, and gave his bond as such treasurer, which was approved, and that he entered upon the discharge of his duties as such officer. He was re-elected to such office each year thereafter, including the year 1904, but gave no bond, except the bond approved in 1899. He acted as such treasurer from the first election in 1899 until June 15, 1904, when he left said town, county, and state. That the corporation taxes of said town of Goodland were collected by the treasurer of Newton county, Ind., for the year 1904 and years prior thereto. At the settlement between the auditor and treasurer of Newton county on May 22, 1904, it was determined and made known that Frank M. Coovert, treasurer of Newton county, had collected on the tax duplicate of 1903, up to and including the first Monday in May, 1904, of the taxes levied by the board of trustees of the town of Goodland, the sum of $3,484.54 and no more, all of which belonged to said town. On May 23, 1904, said Coovert, as treasurer of Newton county, Ind., paid over to said Gilman as treasurer of the town of Goodland $3,000 of the amount belonging to said town, and took his receipt therefor as such town treasurer. On June 20, 1904, the board of trustees of the town of Goodland, assuming that the flight of said Gilman from said town on June 15, 1904, rendered him incapable of holding or exercising the duties of said office of town treasurer, declared said office vacant and appointed Lawrence A. Wiles, the relator, treasurer of said town, who qualified and gave bond as such treasurer. After said date and before July 14, 1904, said Wiles procured from the auditor of Newton county three orders, amounting in all to $3,484.54, being the amount due the town of Goodland from Coovert as treasurer of the said county on account of the taxes of said town collected by said county treasurer on the duplicate of 1903, as shown by the May settlement between the auditor and treasurer of said county. On July 14, 1904, said Wiles as such town treasurer demanded of Coovert as such county treasurer the payment of said warrants. Thereupon said county treasurer paid to said town treasurer the sum of $484.54 and took his receipt therefor, and refused to pay the balance of said order, amounting to $3,000, stating as a reason therefor that he had already paid that sum to Fred D. Gilman, as treasurer of said town, and that he did not owe said balance, and had no other funds in his hands as county treasurer with which to pay the same. That said Coovert never paid, to appellee, his successor in office as such treasurer, any funds of the town of Goodland, nor has said appellee as such treasurer ever received any money applicable to the payment of said sum of 3,000. The court stated as conclusions of law (1) that appellant was not entitled to recover and (2) that appellee was entitled to recover his costs.

Section 1182, Burns' Ann. St. 1901 (section 1168, Rev. St. 1881; section 1168, Horner's Ann. St. 1901), provides that “writs of mandamus may be...