State v. Hess

• Citation: 91 N.E. 732,174 Ind. 495
• Decision Date: 28 April 1910
• Docket Number: No. 21,518.,21,518.
• Parties: STATE v. HESS.
• Court: Indiana Supreme Court

174 Ind. 495

91 N.E. 732

STATE

v.HESS.

No. 21,518.¹

Supreme Court of Indiana.

April 28, 1910.

Appeal from Circuit Court, Wabash County.

Action by the State against Alexander Hess. From a judgment for defendant, plaintiff appeals. Affirmed.

James Bingham, W. H. Thompson, E. M. White, and A. G. Cavins, for the State. Charles W. Moores, Sayre & Hunter, and W. W. Thornton, for appellee.

MONTGOMERY, J.

This action was brought by the state to recover the sum of $3,653.59, alleged to have been retained by appellee out of fees and costs collected by him as clerk of the Supreme and Appellate Courts, and for which he failed to account to the present clerk of said courts in accordance with the terms of Act Feb. 26, 1907 (Acts 1907, p. 92), and for the statutory penalty provided for in said act. Appellee's demurrer to each paragraph of complaint on the ground that the facts therein alleged were insufficient to constitute a cause of action was sustained, and, the state declining to amend and electing to stand upon the sufficiency of its complaint, final judgment was rendered in favor of appellee. The sustaining of demurrers to each paragraph of the complaint has been assigned as error.

The first paragraph of complaint alleged the following facts in substance: That in November, 1894, appellee was duly elected clerk of the Supreme Court, and on the 22d day of said month qualified and entered upon the duties of his office and continued therein until the 22d day of November, 1898, and by virtue of his office was during said term also clerk of the Appellate Court. That during said term certain causes were appealed to said courts wherein fees were taxed for costs paid by appellants for the preparation of transcripts of the record in said causes for appeal. That said causes were reversed by said courts and the fees so taxed were recovered of the appellees and became the property of the appellants in said respective causes. That such fees were legally taxed in each of the cases set out in both the Supreme and Appellate Courts, to the aggregate amount of $2,714.90. That fees were earned by sheriffs of the various counties for the service of process in said causes, and taxed and collected in the same manner during said term, to the aggregate amount of $938.69. That appellee, as clerk of said courts, in his official capacity and by virtue and color of his office and not otherwise, collected and received each and all of the transcript fees and sheriff's fees so taxed in the total sum of $3,653.59. That at the expiration of appellee's said term of office he failed, neglected, and refused to pay over to his successor in said office any part of said sums of money, but appropriated said fees and costs wholly to his own use and benefit, and still retains and holds the same. That at no time were the sums and amounts so taxed, collected, and received by appellee as such clerk his property, but all said fees and costs were when so received by him the property of the persons and officers hereinbefore named, and were property to which the state was lawfully entitled for the use of said persons and officers. That more than 60 days have elapsed since the 26th day of February, 1907, and after the expiration thereof, and before the commencement of this action, the state by and through the clerk of the Supreme and Appellate Courts and the Attorney General, acting in their official capacity, demanded of appellee that said several sums of fees and costs be paid to the clerk of said courts, and demanded that appellee make a sworn itemized statement of all such fees and amounts remaining in his hands collected by him during his said term of office as clerk or under color thereof, and to whom each and all of said fees were due, and to file such sworn statement in the office of the clerk of said courts, and to pay all such fees and amounts over to said clerk. That since the 26th day of February, 1907, continuously to the present, appellee has unlawfully held and still unlawfully holds said money, and that he has wholly failed, neglected, and refused to make or file any statement of the moneys so remaining in his hands, collected, and received as aforesaid, or showing to whom such fees were due, and to pay over to such clerk any part of said fees and amounts, and by reason of the premises has become liable to the state for a penalty equal to 25 per cent. of the aggregate sum so unlawfully retained.

The second paragraph of complaint alleges the same facts as the first, and, in addition, alleges that appellee concealed from the state and from the persons entitled to said fees and costs the fact that he had collected and received the same. That portion of the act of 1907 upon which this action is founded reads as follows: “The clerk of the Supreme Court shall tax and charge in favor of the sheriff of the Supreme Court, or in favor of the county sheriffs for their services, as his deputies, the fees and amounts now or hereafter provided by law, which fees and amounts shall not belong to the state of Indiana, but shall be the property of said sheriff and his said deputies, and when collected shall be by said clerk paid over to said sheriff or his said deputies. And such clerk at the expiration of his term shall hand over to his successor in office all of the books, papers, fees, costs, charges and amounts, together with all moneys and other property received by him by virtue of his office, or under color thereof. Any person heretofore elected or appointed clerk of said Supreme Court, whose term of office as such clerk has expired before the passage of this act, having any such fees in his hands, shall, within sixty days from the taking effect of this act, make a sworn, itemized statement of all such fees and amounts remaining in his hands, by such clerk collected during the term of his office as such clerk, or under color thereof, and to whom due, and file such sworn statement in the office of the clerk of the Supreme Court of the state of Indiana, and pay all such fees and amounts over to the clerk of the Supreme Court, and in default thereof or of any thereof, shall be and become liable to the state for a penalty of twenty-five per cent. of such respective amounts so retained by him, and it shall be and become the duty of the Attorney General to proceed by appropriate action, or otherwise, to enforce the collection, for the use and benefit of the party entitled thereto, of any and all such amounts so collected and retained by such person, including the penalties aforesaid, against any and all persons liable therefor, and all such unclaimed fees collected under this act from former clerks that have been paid in for two years, and which remain in the office of the clerk of the Supreme Court of this state for a period of six months uncollected by the person or persons to whom the same is due, and all other unclaimed fees in the hands of the clerk of the Supreme Court of this state, after the expirationof two years from the date when such fees are paid to said clerk, shall be paid into the state treasury, to be held as other funds that escheat to the state of Indiana: Provided, however, that it shall be the duty of the clerk of the Supreme Court, when fees are paid into the office of such clerk for the benefit of...