141 Ind. 68 | Ind. | 1893
This cause has been in this courtonce before. 115 Ind. 234.
The complaint is substantially the same as on the former appeal. It alleges that on the 11th day of December, 1880, and "prior thereto, appellee had been engaged in erecting and constructing a court house and jail at Rockville, for which plans and specifications had been made and adopted; that the letting of the contract had been all done in conformity with law, and one Myers, defendant in the case, was the lowest bidder for the work and materials; that he entered into the contract
The appellee filed a motion to strike out all those portions of the complaint which seek to recover the indebtedness of Meyers to the appellant under the original contract, and the court sustained the motion, and this ruling is assigned as error. This ruling is in harmony with the decision in this case on the former appeal, 115 Ind. 234. On that appeal it was expressly held that the appellant could not recover for the indebtedness due from Meyers, the payment of which is alleged to have been assumed by the appellee. The court said: “The commissioners had no power to assume an indebtedness due the appellant from the contractor, and so far its contract can not be enforced, nor has the county come under any equitable obligation to pay the amount due for work done by the contractor.”
It appears, according to the alleged contract, that the county received the benefit of a reduced price for the material furnished and work done after Myers abandoned the contract and the commissioners assumed the control of the work on account of their agreement to assume and pay the balance due the appellant from Myers and carry out the contract as made with Myers, and it would be in
The court says: “But, in respect to work actually furnished for the county, at the request of the commissioners, the county is at least liable to pay the actual and reasonable value of the labor and materials furnished, and for the money expended in constructing public buildings, which the county has accepted and which it is using and enjoying.”
The appellee answered, alleging that on the 4th day of September, 1882, the appellant presented and filed with the auditor of Parke county its claim against the appellee for $17,886.05; that on the 6th day of September, 1882, said claim was presented by said county auditor to the appellee board of commissioners; that the claim was considered by the commissioners and they rendered their decision and entered of record their judg
To this answer a demurrer was filed by the appellant for want of facts, which was overruled and exceptions taken. The appellant refusing to plead further, judgment was rendered for appellee. The ruling on the demurrer to the answer is assigned as error. It is suggested that the answer is defective because it does not allege that the parties are the same, but we think this objection is not tenable. We think the answer contains the necessary averments to make it good if the adjudication by the hoard of commissioners is a bar to the action; that is to say, if, under the laws, the appellant was required to present his claims to the board, and, if disallowed his only remedy was by appeal and not by an independent action in the circuit court, and such we think to be the requirements of the law. On the former appeal in this case, it was held that parties are required to present their claims to the respective boards of commissioners before bringing suit. This suit was commenced prior to the law of 1885, and is governed by the law of 1879, providing that no court should have jurisdiction except on appeal from the decision of the board of commissioners. Maxwell v. Board, etc., 119 Ind. 20.
The county, represented by the board of commissioners, is the real party in interest. The purpose of the filing of the claim before the board of commissioners was to recover the claim from the county, and that is the purpose and object of this suit, and the question is res judicata and can not be amended by making Myers a
There is no error in the record.
Judgment affirmed, with costs.