Zuelly v. Casper

• Decision Date: 24 January 1906
• Docket Number: 5,957
• Citation: 76 N.E. 646,37 Ind.App. 186
• Parties: ZUELLY ET AL. v. CASPER ET AL
• Court: Indiana Appellate Court

76 N.E. 646

37 Ind.App. 186

ZUELLY ET AL. v. CASPER ET AL

No. 5,957

Court of Appeals of Indiana

January 24, 1906

From Perry Circuit Court; C. W. Cook, Judge.

Suit by Adolph Zuelly and others against Martin F. Casper and another. From a decree for defendants, plaintiffs appeal.

Reversed.

John W Ewing and Sol. H. Esarey, for appellants.

William T. Zenor, Philip Zoercher, Jerry L. Suddarth and M. D Casper, for appellees.

ROBY C. J. Black, P. J., Wiley, Myers and Robinson, JJ., concur. Comstock, J., absent.

OPINION

ROBY, C. J.

This is the second appeal. Zuelly v. Casper (1903), 160 Ind. 455, 63 L. R. A. 133, 67 N.E. 103. Before this action was begun the Perry Circuit Court enjoined the board of county commissioners from proceeding with its employed expert accountant to investigate the books, papers and records of the offices of auditor and treasurer of said county. An appeal was taken by the board and the person with whom it had contracted. Pending the appeal there was a change in the membership of the board. It thereupon filed a dismissal; but its coparty continued in court, and the judgment was reversed. Board, etc., v. Gardner (1900), 155 Ind. 165, 57 N.E. 908.

Before the change in membership above referred to took place, an action was begun by the county against appellee Casper for the recovery of alleged illegal fees held by him. The questions presented by this appeal principally arise, as will be hereinafter shown, from the disposition made of that action.

Appellee Casper answered in eleven paragraphs, he and the board answered jointly in one paragraph, and the board answered separately in two paragraphs. No demurrer was addressed to any paragraph of answer, but the issue was closed by replies. The appellants were not bound to demur, and are entitled to make their objections to the sufficiency of the evidence. Ayres v. Blevins (1901), 28 Ind.App. 101, 62 N.E. 305. The issues were broad enough to present the questions hereafter discussed. Trial was had and finding for appellees. Appellants' motion for a new trial was overruled, and such ruling forms the basis of the error assigned. In this action appellants, taxpayers of the county, seek to recover illegal fees on behalf of the county, which it is alleged, as shown by the opinion in Zuelly v. Casper, supra, are in the hands of its enemies.

The illegal fees which are sought to be recovered in this suit include those to recover which action was originally brought by the board of commissioners, although a large number of items are included in the bill of particulars in this case which were not embraced in that one. It is claimed by appellees that the matters which are now sought to be litigated were adjudicated in the prior action, that the county is estopped by conduct from setting up its claim, that the unwillingness of the board to bring this suit was not proved, that it can not be maintained without showing a return of, or an offer in the complaint to return, the amount paid by Casper, as hereafter set out, and that the action is barred by the statute of limitations. The circumstances connected with the disposition of the prior action are, according to the testimony of Cassidy, who was then a member of the board, that one of Casper's lawyers called on him and said: "Now, we would like to have a talk about this matter. It is coming up for trial to-morrow morning, and, if we could settle this matter, probably it would be better." The meeting took place and resulted in the execution of an instrument in terms as follows:

"Cannelton, Indiana, May 8, 1900. Received of Martin F. Casper, the sum of $ 1,425.77, same in full of all dues, demands, rights and credits due and owing to the county of Perry, in the State of Indiana, from said Martin F. Casper for money illegally paid him by the board of commissioners of said county at the time and while said Casper was auditor of said county, said money being paid in by said board and illegally allowed him as such auditor for service as such auditor. That this settlement and said amount as received as aforesaid is in full satisfaction of all demands of whatsoever nature or description due and owing to said county by said Casper as such auditor, and that the suit now pending against him before the Perry Circuit Court, No. 266 on the docket of said court, wherein the board of commissioners is plaintiff, and said Martin F. Casper is defendant, shall this day be dismissed."

An entry was thereupon made in the commissioners' record following the language of the receipt and a dismissal entered in the circuit court as follows: "And on motion of plaintiff this cause is dismissed by agreement, at the plaintiff's cost."

A specific bill of particulars is filed with the complaint. Its accuracy was established upon the trial without much controversy. To the amount withheld, interest at six per cent should be added. Tucker v. State, ex rel. (1904), 163 Ind. 403, 71 N.E. 140. This claim, amounting to about § 6,000, was discharged by the board, so far as they had power to discharge it, upon the payment of § 1,425.77. This sum was fixed upon, according to the testimony of the witness Cassidy, by excluding from the charge against the auditor all items barred by the statute of limitations and by giving him credit for § 250, which was claimed by him for making a statement of the indebtedness of the county, one of the commissioners saying: "I always wanted that claim paid because he did the work."

The questions, both of law and fact, connected with the application of the statute of limitations, are questions of difficulty. There does not seem to have been any exigency requiring immediate action, so far as the county was concerned, and an immediate determination by a court of competent jurisdiction, whose conclusions were reviewable could have been had. The county could lose nothing through such trial and judgment, since it was demanding only that which belonged to it. In order to fix upon the amount named, it must have been necessary to concede every claim made by the auditor. That some such process was followed is indicated by the fact that the § 250 credit above referred to was made in addition to those on account of the statute of limitations, and that the service for which such sum was allowed was one which it was the duty of the auditor to make, his neglect or refusal to make it being a misdemeanor punishable by a fine of not less than § 100 or more than § 500. § 7918 Burns 1901, Acts 1891, p. 45. The inclusion of this amount in the credits avowedly given the auditor in such attempted settlement imparts character to the entire...