Temple v. State ex rel. Limbach
| Decision Date | 23 June 1916 |
| Docket Number | 22,897 |
| Citation | 113 N.E. 233,185 Ind. 139 |
| Parties | Temple et al. v. State of Indiana, ex rel. Limbach |
| Court | Indiana Supreme Court |
From Henry Circuit Court; Fred C. Gause, Judge.
Action by the State of Indiana, on the relation of Adolph Limbach against Rufus L. Temple, trustee, and others. From a judgment for relator, the defendants appeal.
Affirmed.
Charles L. Tindall, Forkner & Forkner, Robert L. Mason and William A Hough, for appellants.
Barnard & Jeffrey, M. O. Sullivan, Omer S. Jackson and Thomas E Glascock, for appellee.
This is a mandamus action by appellee against appellants, the trustee of Center school township, Hancock county, and the members of the advisory board of that township, to compel the sale of bonds of the school corporation to procure funds for the construction of a school building. Appellants' separate demurrer to the complaint was overruled, whereupon they joined in an answer in one paragraph, to which a demurrer was sustained. They declined to plead further, and judgment was rendered for appellee. This appeal follows and errors are assigned here on the rulings on the demurrers.
A motion has been filed to dismiss the appeal on various grounds, but it appears that prior to the filing of such motion appellee asked and obtained an extension of time in which to file his brief. That action operated as a waiver of the right to ask for a dismissal of the proceeding (Rule 21 1/2, Supreme Court), and the motion to dismiss is therefore ordered stricken from the files.
The complaint alleges, in substance, that on March 24, 1914, the members of the advisory board of Center township met in special session and found that it was indispensably necessary to provide for the construction of a new school building in district No. 13 to take the place of an old building which was found, among other things, to have become unsanitary, and that the cost of the proposed building would be $ 47,000, which sum would exceed any sum available therefor from funds on hand or procurable from the existing levy. It is further averred that the advisory board at said meeting, by special order entered and signed on the record of the board, ordered and directed that the bonds of the school township be issued in the amount of $ 47,000 and sold by the trustee to provide funds with which to erect the building; that plans and specifications were subsequently adopted and notice was given of the letting of the building contract; that on June 19, 1914, being the time fixed by the notices, the bids were opened and that of the relator was accepted; that a written contract was executed by the relator and the trustee which provided for the erection of the building for $ 46,662, payable as the building progressed in amounts not to exceed 80 per cent. of the architect's estimates; that to secure the performance of the contract relator delivered to the trustee his bond in the penalty of $ 50,000, which bond was approved and accepted by the trustee; that relator thereafter commenced the construction of the building and now has the same more than half completed; that the architect has certified that the sum of $ 23,000 has been earned on an 80 per cent. basis, which estimate was submitted to the trustee with a demand for payment, but that the trustee refused the same because of lack of funds; that the trustee has no funds with which to pay such claim or any part thereof; that there is no way in which the trustee can secure funds to meet the liability except by the sale of bonds heretofore authorized; that the trustee has failed to offer bonds for sale, after demand therefor by the relator, and has refused to offer for sale the authorized issue; that the members of the advisory board declare that they will approve no sale of bonds, except pursuant to an order of court, and the trustee declares he will make no effort to sell the same without like order. Other allegations of the complaint show that in November, 1914, the present trustee and members of the advisory board were duly elected to succeed the persons theretofore holding such offices, and that the authorized indebtedness of $ 47,000 does not violate the constitutional limitation.
It is contended by appellants that the complaint is insufficient for failure to show that the site on which the building is being erected is owned by the township ( Koontz v. State, ex rel. [1873], 44 Ind. 323), but we are of the opinion that it is fairly inferable from the pleading that the building is being constructed on the old site, which belongs to the township. So considered, it is sufficient as against the objection urged.
It is also urged that, since an action for mandamus will not lie except in the absence of an adequate legal remedy, the complaint is bad because, as contended, the relator may secure adequate relief by a suit on the building contract. We can not agree that the pleading is open to this objection. Assuming that a judgment might be recovered in an action at law, it is manifest that it could not be enforced until some provision be made for its payment. Nor is the objection well taken that, because the amount due the relator under the contract has not been ascertained by an officer properly authorized, he is not entitled to relief in this action. State, ex rel. v. Snodgrass (1884), 98 Ind. 546, 550. Counsel misconstrue the theory of the pleading. It does not seek an order against the trustee to pay a sum of money measured by the architect's estimates, or any other sum, but demands the performance of a ministerial duty in procuring funds through an authorized loan. The trustee, of course, would not be bound by the architect's estimates per se, but by facts showing performance of the contract, and the judgment appealed from in nowise prejudices the trustee in defending the school corporation against an improper claim.
Finally it is insisted that the complaint is defective because it shows that the relator's bond was not signed by any surety. After averring that a bond was executed,...
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