156 Ind. 450 | Ind. | 1901
It appears from the record that Daniel Christian served as treasurer, of Huntington county two terms of two years each? from 1876 to 1880. During his
Appellee’s term of office as county treasurer expired November 12, 1886, and he paid over to his successor in office all the funds in his hands as such treasurer unaccounted for, as shown by the annual settlement of 1886, after charging himself with the amounts received since the date of that settlement, and taking credit with the disbursements made by him up to the expiration of his term, except $12,000. He refused" to account for and pay over said sum for the reason that the same was an overcharge in the annual settlements, for which he was asking and was entitled to a credit, as set forth in his application to the board of commissioners. Afterwards in 1887, upon the order of appellant, as provided in §6506 R. S. 1881, the prosecuting attorney brought an action in the Huntington Circuit Court against appellee and his sureties on his official bond as such treasurer in the
The court found that appellee was charged twice with said amount of $12,000, received from said Christian, -in the annual settlements of 1885 and 1886. The court also, found that in the suit in the name of the State on relation of the county auditor against appellee and his sureties on his official bond, appellee filed an answer alleging the same mistake in regard to said $12,000 as presented in this case. That the issues in said cause were tried by the court and “a judgment rendered against the defendants therein for $14,110, and that appellee was not entitled to a credit for the three false and erroneous items aggregating $12,000, but that said items represented the $12,000 proceeds of the gravel road bonds”. The conclusion of law stated was that appellee was entitled to have his annual settlement of 1886 corrected so as to show a credit of $12,000. Over a motion for a new trial, the court rendered judgment that “the annual settlement of 1886 be corrected so as to show a credit of $12,000 in favor of appellee, in addition to the credits given to him in said settlement, so as to show that the balance of county funds in his hands as such treasurer at the date of said report, was in truth and fact $12,000 less than the balance shown to be in his hands by said report. That said additional credit is given plaintiff (appellee) for the
Appellant, however, first insists that no appeal was authorized by statute from the decision of the board of commissioners in denying appellee’s application to correct his annual settlements as county treasurer, for 1885 and 1886, and that therefore the court below had no jurisdiction to try and determine this proceeding on appeal. Appellee insists that said decision of the board of commissioners was judicial in character and that the statutes authorized an appeal therefrom. Even if appellee’s contention as to the right of appeal in this proceeding is correct, a question we will hereafter determine, this cause must be reversed. It is evident that the same evidence that would have established appellee’s defense in the action on his official bond, under the answer filed in that case, would have established the alleged mistake in his annual settlements. The issue as to this question was the same in both cases. In the action on the official bond, the court found and adjudged that appellee was only charged once with the $12,000 received from Christian, in the annual settlements of 1885 and 1886, and that the balance in his hands, as shown by said annual settlements, was correct, and rendered judgment therefor, with interest and penalty, against appellee and his sureties, while in this case the court found and adjudged that appellee was charged twice with said $12,000 in said annual settlements and that the balance in appellee’s hands was $12,000 less than shown by said settlements. The answer of former adjudication, filed in this case;, setting up the trial and adjudication of
It is true that the county auditor of Huntington county was the relator in the action on said official bond, but he was a mere nominal party, without power to settle or in any way compromise said .action, or receive any money in said action, before or after judgment. The action was to recover money belonging to the county, and the judgment when rendered and the money when paid thereon were the property of the county; and it is expressly adjudged in this action that the same was paid over to the county. In the absence of any statute expressly providing that said action should be brought in the name of the auditor as relator, the board of commissioners would have been the only proper relator, in an action on the official bond, to recover county funds. §251 Burns 1894, §251 R. S. 1881 and Horner 1897. Board, etc., v. Kimberlin, 108 Ind. 449. The judgment in that case was as binding and conclusive on the board of commissioners of Huntington county as if said board, instead of the auditor, had been the relator therein. That said judgment was also binding upon appellee and his sureties against whom judgment was rendered, is not denied. The fact that said action involved persons who are not parties to this proceeding, is immaterial. 2 Van Fleet’s Former Adj. §552, p. 1122; Davenport v. Barnett, 51 Ind. 329, 333, 334; Nave v. Adams, 107 Mo. 414, 17 S. W. 958, 28 Am. St. 421; Dowe v. McMichael, 6 Paige 139.
We concur, however, with counsel for appellant in their insistence that there was no appeal from the decision of the board of commissioners in denying appellee’s application. The settled rule in regard to appeals from the decisions of boards of commissioners is that if such decision of the board is judicial in its character an appeal lies "therefrom, under the general right of appeal authorized by §7859 Burns 1894, §5772 E. S. 1881 and Horner 1897, unless the right.of appeal is denied expressly or by necessary implication by the statute under which the decision is made; but if the decision is made in the exercise of merely administrative, ministerial, or discretionary powers, no appeal lies therefrom unless the statute in express terms authorizes an appeal from such decision. Board, etc., v. Conner, 155 Ind. 484; Potts v. Bennett, 140 Ind. 71; Board, etc., v. Heaston, 144 Ind. 583, 588, 55 Am. St. 192.
Since May 5, 1853, the statute has required a county treasurer annually to make a complete settlement with the board of county commissioners, at the regular June term thereof, and that at the expiration of his term, he shall deliver to his successor all public moneys, books, and papers, in his possession. §8003 Burns 1894, §5925 E. S. 1881 and Horner 1897. Such annual settlements made by the, county treasurer with the board of commissioners are not conclusive upon the State or .county. In making such settlements the board of commissioners acts in a purely administrative or ministerial capacity, and yvhen so acting, its determination is not conclusive upon either party to such settlement. Hunt v. State, 93 Ind. 311, 317-323; Bunnell v. Board, etc., 124 Ind. 1.
The action of a board of commissioners in making settlements with county treasurers and township trustees, and in the examination and confirmation of their reports, being the exercise of administrative or ministerial and not judicial powers (Bunnell v. Board, etc., 124 Ind. 1; State v. Board, etc., 136 Ind. 207; Hunt v. State, supra), there is no appeal from the decision of such board in such cases unless the right of appeal is given by statute in express terms. Board v. Conner, 155 Ind. 484, and cases cited; Bunnell v. Board, etc., supra; State v. Board, etc., supra. As no right pf appeal in such cases is given by statute in express terms, it follows that no appeal could be taken from the decision of the board approving or refusing to approve the annual settlement of a county treasurer. If no appeal can be taken from such decision of the board, it certainly follows that no appeal can be taken from the decision of a board of commissioners denying an application to correct or change such annual settlement.
Appellee cites Board, etc., v. Benson, 83 Ind. 469; and Board, etc., v. Tichenor, 129 Ind. 562, as declaring a different rule. These cases are not in point. There the county treasurers through mistake and inadvertence had paid over' and accounted for more money than they had received. Under the statute, they filed claims therefor and asked an allowance against the county to be paid out of the county treasury. The claims were disallowed by the boards of commissioners. An appeal in such cases is authorized in express terms by §7856 Burns 1894, §5769 R. S. 1881 and
Appellee, however, insists that no question of jurisdiction is presented by the record, for the reason that the Huntington Circuit Court and the court below were “courts of general jurisdiction, and their authority to proceed in a casé need not affirmatively appear by the complaint”. ,It is true that as the circuit court is a court of general jurisdiction that its authority to proceed need not affirmatively appear from the complaint. Board, etc., v. Tichenor, 129 Ind. 562, 565, and cases cited; Noerr v. Schmidt, 151 Ind. 579, 584, 585, and cases cited. But in this case it affirmatively appears from the application filed before the board of commissioners that the same was not appealable, and that the circuit court had no jurisdiction on appeal. Under such circumstances the question of the jurisdiction of the circuit court can be raised at any stage of the proceedings. Ewbank’s Manual, §289; Doctor v. Hartman, 74 Ind. 221, 228-231.
Judgment reversed, with instructions to dismiss the appeal from the decision of the board of commissioners of the county of Huntington.