The Meridian National Bank v. Hauser
| Citation | 42 N.E. 753,145 Ind. 496 |
| Decision Date | 21 January 1896 |
| Docket Number | 17,122 |
| Parties | The Meridian National Bank et al. v. Hauser, Treasurer, Etc |
| Court | Indiana Supreme Court |
Motion to Modify Overruled June 19, 1896.
From the Marion Superior Court.
Affirmed.
A. C Harris and L. Cox, for appellants.
W. A Ketcham, Attorney-General, F. T. Edenharter, and H. N. Spaan for appellee.
This action was brought by appellee, Hauser, as treasurer of the board of trustees of the Central Hospital for the Insane, against appellant, the Meridian National Bank, and one Philip M. Gapen, formerly treasurer of said board of trustees, who was made a party defendant to answer as to his interest.
The superior court, in special term, sustained the demurrer of the Meridian National Bank to each paragraph of the amended and supplemental complaint. Hauser, the plaintiff in the court below, appealed to the general term of the superior court, where the decision of the special term was reversed, with instructions to overrule the demurrer to each paragraph of the amended and supplemental complaint. From this decision the Meridian National Bank appealed to this court.
The first of said paragraphs of the amended, substituted and supplemental complaint alleges that for a long time prior to the 20th day of February, 1889, Philip M. Gapen had been a member of said board of trustees and treasurer thereof, duly elected and qualified; that as such treasurer he, from time to time, received from the Treasurer of State large sums of money with which to pay claims for supplies and services against said board, and that these moneys were from time to time deposited with said bank, and from time to time checked out by said treasurer, and that up to said 20th day of February, 1889, his checks as such treasurer had always been promptly honored; that on said day there was due said Gapen, as such treasurer, a balance of $ 3,043.66 of the moneys so deposited by him, and that there was due to divers and sundry parties, for work and labor done and materials furnished said board, a like sum of $ 3,043.66, and that in order to pay said claims said Gapen, as such treasurer, drew his check, payable to his order as such treasurer, for said sum of $ 3,043.66, but that said bank wholly failed and refused to pay the same; that immediately thereafter said Gapen, as such treasurer, brought a suit against said bank to recover said sum of $ 3,043.66, to which said bank appeared and filed answer; that on the first day of March, 1889, said Hauser was by the general assembly elected one of the trustees for said Central Hospital, and was thereafter by said board duly elected treasurer thereof, as said Gapen's successor, and that he qualified, gave bond and entered upon the discharge of his duties as such treasurer, and has ever since continued therein; that, on the 26th day of January, 1891, on motion of the Attorney-General of the State, said Hauser was substituted as plaintiff in the place and stead of said Gapen, all parties to the suit being present and none of them making objection to such substitution.
The second of said paragraphs is the same as the first, except that it sets up in addition a formal written assignment of the cause of action from Gapen to Hauser, treasurer, a copy of which assignment is filed therewith.
The third of said paragraphs is the same as the second, except that it avers in addition that said Gapen, treasurer, prior to drawing and presenting a check to his order, as such treasurer, for said $ 3,043.66, "as such treasurer, had drawn and issued to said parties, in whose favor such allowances had been made by said board of trustees, his checks upon said Meridian National Bank for the respective allowances so made, and had delivered the same to the said several parties, amounting in the aggregate to said $ 3,043.66, and said parties had presented the same to said Meridian National Bank and had demanded payment thereof, but such payment had been refused upon each and every of said last named checks, and thereupon the said Gapen, as such treasurer, drew his check payable to his order, as such treasurer, and properly endorsed," etc., which was likewise refused.
The demurrer to each paragraph stated two grounds of objection.
1. That the plaintiff has not legal capacity to sue.
2. That said paragraph does not state facts sufficient to constitute a cause of action.
Appellant's contention is that appellee had no right to maintain this action; that the persons for the payment of whose claims Gapen, the former treasurer, had received the money from the State, were the real parties in interest, and they only could maintain an action for the money.
Appellee's contention is that the treasurer of the board of trustees is the trustee of an express trust, and as such can maintain this action.
Sections 2768-2782, R. S. 1881, being the act of March 6, 1879, governed the board of trustees of the hospital for the insane, until the passage of the act of February 21, 1883, Elliott's Supp. p. 132, sections 455-9. By this act, sections 2768, 2769, R. S. 1881, were repealed, but the remainder of the act of 1879 remained in full force. It was provided in section 2770, R. S. 1881 (section 3010, R. S. 1894), that the trustees and the president of the board should each give a bond, payable to the State, that they should organize by electing one of their number treasurer, one as secretary, and one as president.
Section 3012, R. S. 1894 (2772, R. S. 1881), provides that the trustees shall hold a meeting at about the close of each month, for the purpose of consultation and the transaction of current and incidental business, and
Section 3013, R. S. 1894 (2772, R. S. 1881), provides that
It is clear, from the sections quoted, that no money can be paid to the treasurer of the board of trustees of an insane hospital out of the State treasury until the hospital has actually received supplies or service, and the same has been allowed by the board of trustees and orders drawn on the treasurer of the board therefor, as required in sections 2772, 2773 (3012, 3013), supra. It is only when the provisions of said sections have been complied with that the Auditor of State is authorized to draw an order on the State Treasurer in favor of the treasurer of the board.
The board allows the claims for support and services when itemized and signed and sworn to by the claimant; and when a claim is allowed an order is drawn upon the treasurer of the board for the amount payable in ten days. Before the ten days expires, it is the duty of the treasurer to present a statement of the orders drawn and unpaid and giving dates, number and amount of each order, and for what drawn, and the person to whom payable, signed and...
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