Taylor v. The Trustees of First Congregational Church And Society of Michigan City

• Court: Indiana Appellate Court
• Writing for the Court: LOTZ, J.
• Citation: Taylor v. The Trustees of First Congregational Church And Society of Michigan City, 34 N.E. 655, 7 Ind.App. 388 (Ind. App. 1893)
• Decision Date: 23 June 1893
• Docket Number: 754
• Parties: TAYLOR v. THE TRUSTEES OF THE FIRST CONGREGATIONAL CHURCH AND SOCIETY OF MICHIGAN CITY

34 N.E. 655

7 Ind.App. 388

TAYLOR v. THE TRUSTEES OF THE FIRST CONGREGATIONAL CHURCH AND SOCIETY OF MICHIGAN CITY

No. 754

Court of Appeals of Indiana

June 23, 1893

From the La Porte Circuit Court.

Judgment affirmed.

R. S Carroll, for appellant.

H. B Tuthill, for appellee.

OPINION

LOTZ J.

The appellant was the treasurer of the appellee, a church society, organized under the laws of this State, and, as such treasurer, had received and disbursed moneys belonging thereto. After he ceased to be such treasurer, appellee brought this action to recover moneys alleged to be due it from appellant.

The complaint is in two paragraphs. The first declares upon an account stated. The second declares on an account for moneys had and received, and with it is filed, as an exhibit, an itemized statement of receipts and expenditures by said appellant. This bill of particulars shows that appellant received, as such treasurer, the sum of $ 1,555.93, and disbursed the sum of $ 1,411.11, and that there was a balance of $ 144.82 due appellee, for which sum judgment was demanded, and all other proper relief.

The appellant answered (1) the general denial, and (2) a set-off. There was a reply to the second paragraph of answer, and, after issue was thus joined, the record contains the following recital: "And, by agreement, this cause is referred to Frederick H. Zahrn, who is to hear the evidence, beginning on Tuesday, May 10, 1892, and to continue until the evidence is complete, and to report upon the facts and conclusions at the next term of this court."

The referee filed his report at the following September term of the court, by which it is made to appear that, in accordance with the order of the court, said referee began hearing the evidence on the 10th day of May, 1892, and continued for the space of three days; that the hearing was then postponed until about the 12th day of August, at the request of the appellant, to give him an opportunity to procure certain vouchers, upon which day the hearing was concluded.

The report further shows that during the time appellant was acting as treasurer of appellee, he received the sum of $ 1,533.28, and disbursed the sum of $ 1,368.61, and that there was a balance due appellee in the sum of $ 164.67. The referee asked that he be allowed the sum of $ 25 for his services.

The appellant objected and excepted to this report, assigning as causes for such exceptions (1) that the finding and award was obtained by fraud and collusion, and through undue influence; (2) that the referee improperly refused appellant reasonable time to obtain the evidence of certain witnesses, and improperly refused to hear other witnesses when offered by him; (3) that appellee's attorney acted as attorney for the referee, and that appellee and its attorney influenced his decision and made his report for him; (4) that the referee exceeded his powers and improperly executed them in that he did not take time to hear the evidence.

The appellee moved to strike out these exceptions, which motion was sustained by the court, to which ruling the appellant excepted. The court thereupon confirmed the report of the referee and rendered judgment against appellant in the sum of $ 164.67, with costs, and allowed the referee the sum of $ 25 for his services. Appellant thereupon filed a motion for a new trial and offered to file his own affidavit in support of certain causes of said motion, but the court refused to entertain said affidavit or permit it to be filed, to which action the appellant excepted.

There is a bill of exceptions in the record which contains this affidavit.

The assignment of errors brings in review the action of the court in referring the cause to the referee; in striking out appellant's exception to the referee's report; in rendering judgment on the report; in overruling the motion for a new trial, and the refusal to permit appellant to file the affidavit in support of his motion for a new trial.

Appellant has not discussed the questions as they arise from the assignment of errors, but has arranged them into what he denominates three points, and, in disposing of this case, we will follow the course laid out by appellant.

His first point is...