The Indianapolis, Decatur And Western Railway Co. v. Center Township

• Decision Date: 25 September 1891
• Docket Number: 15,009
• Citation: 28 N.E. 439,130 Ind. 89
• Parties: The Indianapolis, Decatur and Western Railway Company v. Center Township
• Court: Indiana Supreme Court

28 N.E. 439

130 Ind. 89

The Indianapolis, Decatur and Western Railway Company v. Center Township

No. 15,009

Supreme Court of Indiana

September 25, 1891

Petition for a Rehearing Overruled Dec. 18, 1891.

From the Marion Circuit Court.

Judgment reversed, with directions to overrule the demurrer to the complaint, and to sustain it to each of the second third, fourth, fifth and sixth paragraphs of the answer.

S. M Shepard and C. Martindale, for appellant.

H. N. Spaan, A. C. Harris and L. Cox, for appellee.

Coffey, C. J. Elliott, J., took no part in the decision of this cause.

OPINION

Coffey, C. J.

The complaint in this case, by reason of the number of exhibits therein set forth, is of unusual length, but the controlling facts, as shown by its allegations, are substantially as follows:

In the year 1870, Center township, in Marion county, voted a donation of $ 65,000 to aid in the construction of the Indiana and Illinois Central railway. The tax was duly assessed, placed upon the tax duplicate of Marion county, collected and passed into the county treasury. The appellant, by reason of consolidations, re-organizations and assignments, has succeeded to all the rights of the Indiana and Illinois Central Railway Company in this fund. In the year 1880 Center township brought an action against the board of commissioners of Marion county to recover this fund, upon the assumption that it had been forfeited by the railway company, and recovered a judgment for the sum of $ 71,102.48. Of this sum the county paid to the township $ 17,112.50.

The railway company was not a party to that suit. By reason of complications growing out of agreements to compromise the disputes between the township and the county, and by reason of a claim made upon the county by the railway company and certain of the tax-payers of the township for the fund then in dispute, the county refused to make further payments, whereupon the township instituted a suit in the Marion Superior Court to recover a new judgment and to estop the railway company and the tax-payers from making any further claim to the fund. In this action the railway company filed an answer and cross-complaint.

The cross-complaint was against both the county and township, and alleged substantially the facts averred in the second paragraph of the answer. The cross-complaint contains the following allegations, viz.: "That no part of said donation has ever been paid to the Indiana and Illinois Central Railway Company or to this defendant, but that the said donation is now in the said county treasury and under the control of said board of commissioners, and is due and unpaid to this defendant; that Center township, Marion county, Indiana, claims to have some interest in said fund adverse to this defendant, but that it has no interest in said fund whatever."

It contains a further allegation that the railway company had complied with all the conditions upon which the donation was made.

Issues were made upon these pleadings by filing a general denial. The cause was tried by the court under an agreement that all matters of defence or counter claim, whether legal or equitable, might be given in evidence under the issues as then formed. The court made a special finding of facts, in which it was found, among other things, that Marion county had paid to Center township the sum of $ 17,112.50 of this fund, and that the railway company had erected its principal machine shops in Center township, the latter being one of the conditions upon which the donation was made. Upon the facts found the superior court stated its conclusions of law in favor of Center township, and rendered judgment thereon; but, upon appeal to this court, the judgment was reversed, with directions to restate the conclusions of law, and render judgment in favor of the railway company. Upon return of the cause to the Marion Superior Court, judgment was rendered against Center township for costs, and against Marion county for the sum of $ 85,000.

The judgment, on motion of the county, was so modified as to deduct therefrom the sum theretofore paid to the township, the decree so modifying the same containing the following stipulation and reservation, viz.: "Nothing in this order made, however, shall be in anywise construed as waiving, releasing or discharging any claim by either said Indianapolis, Decatur and Springfield Railway Company or said board of commissioners to recover of said Center township, Marion county, Indiana, any of the sums heretofore received by said Center township from said board of commissioners, but said rights, if any exist, are expressly reserved."

The township sought to have the special finding so modified as to strike therefrom so much as found that the railway company had located its principal machine shops in Center township, but its application for that purpose was denied.

The complaint in this case seeks to recover from Center township the amount of the donation paid over to it by Marion county.

To the complaint setting up the foregoing facts the township filed an answer consisting of six paragraphs.

The second paragraph avers that each of the items named in the complaint accrued more than six years before the commencement of this suit.

The third paragraph avers that the money for the recovery of which this suit is prosecuted was paid to the township more than six years before the filing of the amended complaint in the cause, and that it was paid with the knowledge of the appellant.

The fourth paragraph avers that the cause of action set up in the complaint in this cause was litigated and settled in the action between the township, Marion county and the railway company, set up in the complaint in this cause.

The fifth paragraph avers that the appellant is not entitled to recover the fund mentioned in the complaint, because it did not comply with the conditions upon which the donation was made, in that it did not locate its principal machine shops in Center township.

The sixth paragraph is the same as the fifth, with the additional averment that the special finding in the case of the appellee against Marion county and the railway company, to the effect that the principal machine shops of the appellant were erected in Center township, was made through the mutual mistake of the parties and the court trying said cause.

To these several answers the court overruled a demurrer, and carried it back, and...