Wood v. The State ex rel. Dodson

• Decision Date: 19 February 1892
• Docket Number: 16,388
• Citation: 30 N.E. 309,130 Ind. 364
• Parties: Wood v. The State, ex rel. Dodson
• Court: Indiana Supreme Court

30 N.E. 309

130 Ind. 364

Wood v. The State, ex rel. Dodson

No. 16,388

Supreme Court of Indiana

February 19, 1892

From the Lawrence Circuit Court.

Judgment affirmed, with costs.

J. H Willard and W. H. H. Edwards, for appellant.

N Crooke and M. Owen, for appellee.

OPINION

Olds J.

The appellant was elected school trustee and president of the school board of the school town of Mitchell, in Lawrence county, Indiana, on the 6th day of September, 1890. At that time, and ever since, said appellant has been and was holding the office of postmaster at the said town of Mitchell, a lucrative office, retaining and holding the office of postmaster, the appellant filed his bond and qualified as president of the school board, and took possession of the office. On the 7th day of May, 1891, the board of trustees of said town proceeded to and did elect the relator school trustee, and he was duly elected president of the school board of the said school town of Mitchell, and the relator brings this action to oust the appellant and recover a judgment of ouster in the court below. The judgment goes further than to merely oust the appellant, and gives the relator the office, but no objection is raised to the form of the judgment. If the relator was entitled to a judgment in his favor, but he is given more by the judgment than he is entitled to, the judgment can not be disturbed, as no motion was made to modify the judgment, and no question is presented as to its form.

The first question discussed is the sufficiency of the complaint.

We have examined the complaint, and do not deem it necessary to set it out.

The complaint is clearly sufficient to withstand a demurrer. The action is properly prosecuted under the second subdivision of section 1131, R. S. 1881, to oust the appellant, and its averments are sufficient to make it good under that section. It is contended that there is no averment showing the holding of a legal office by the relator or the appellant, that it is designated as the office of school trustee of said town of Mitchell. This objection is not well taken. The office is clearly designated. There can be no mistake about the office in controversy being the office of school trustee and president of the school board of the school town of Mitchell. In other words, it is clear from the averments of the complaint that the relator was elected school trustee of the school town of Mitchell by the trustees of the town of Mitchell, and that he was elected president of the school board, and gave bond and qualified as such, and that the appellant was holding the same office and exercising the functions thereof. The pleading is not as explicit as it ought to be, but it is not subject to a demurrer on this account. It is further urged that the pleader has stated conclusions instead of facts. This objection is not well taken.

...