Board of Commissioners v. Eaton, 38 Ind. App. 30

Board of Commissioners v. Eaton

38 Ind. App. 30 | Ind. Ct. App. | 1906

Comstock, J.

Appellee, who was plaintiff below, was duly elected sheriff of Hendricks county, Indiana, at the general election, held on November 8, 1898, for the regular term of two years. He duly qualified by filing his official bond, and assumed the oath of office November 23, 1898, and continued in the discharge of his official duties as such sheriff until November 23, 1900. While acting as such sheriff the appellee received from time to time out of the county treasury of said county, upon allowances in that behalf, $972, for his per diem attendance on the circuit court and the commissioners’ court of said county, and reported the same in his quarterly reports filed with the auditor of said county, and turned said sums of money into the county treasury, and the same, together with all of his “fees,” were credited as a part of the salary allowed him. He sued the appellant to recover the sum so allowed. There was a trial, and the court, upon request, made a special finding of the facts and stated conclusions of law thereon *32in favor of appellee, and rendered judgment for $972, the full amount demanded.

The errors assigned challenge the sufficiency of the complaint and the action of the court in overruling appellant’s motion for a new trial.

1. This case presents, in all essentials, the same questions as were involved in Board, etc., v. Crone (1906), 36 Ind. App. 283, except those arising upon the motion for a new trial.

2. One of the reasons discussed for a new trial is that there is not sufficient evidence to sustain special finding number seven. That finding is as follows: “That prior to the bringing of this suit the plaintiff filed with the Board of Commissioners of the County of Hendricks his claim, in proper form, for the return of said sum of $972, but said board refused to allow said claim, and rejected the same, and said money has not been paid to the plaintiff.” In determining whether a special finding is sustained by sufficient evidence, it is only necessary to consider such evidence as tends to sustain the finding, disregarding any evidence to the contrary, for the reason that if there is evidence sustaining the same, even though there may be evidence to the contrary, we cannot weigh it or determine the credibility of the witnesses. Robinson & Co. v. Hathaway (1898), 150 Ind. 679.

3. There was evidence fairly tending to sustain said finding, but if the claim was not so presented it was a matter of defense. This defense was not pleaded. Board, etc., v. Tichenor (1891), 129 Ind. 562; Bass Foundry, etc., Works v. Board, etc. (1888), 115 Ind. 234.

4. The next reason for a new trial is in admitting in evidence the exhibits one to nine, inclusive, over the objection of the defendant, for the reason that said exhibits and .each of them were self-serving declarations that were not properly sworn to as provided by law.

*335. This reason, is joint and it must be good as to each and all of said exhibits or it fails. Exhibit number two was received and acted upon by the defendant, and the amount therein reported as having been received by the plaintiff was, by the auditor of Hendricks county, charged against the plaintiff on account of his salary as sheriff. All but one of said exhibits are signed by appellee, and all but four are signed and sworn to. Appellant’s objection to all of the exhibits, that they were merely self-serving declarations, cannot be maintained, because they are acknowledgments of money received by him.

6. Counsel for appellant, in the statement of the case, say, that while appellee was acting as sheriff he received from time to time out of the county treasury of said county, upon allowances in that behalf, $972 for his per diem attendance on the circuit court and the commissioners’ court of said county, and reported the same in his quarterly reports filed with the auditor of said county, and that he voluntarily paid said sums into the county treasury, and the same were credited as a part of the salary allowed him by law. This may fairly be considered as an admission of the facts which the exhibits were introduced to prove.

The court did not err in overruling the motion for a new trial, and as to the other alleged errors the judgment is affirmed upon the authority of Board, etc., v. Crone, supra.