160 Ind. 10 | Ind. | 1903
Appellee brought this action against appellants, the board of county commissioners of Miami county, Clarkson Macy the auditor of said county, and the county council, to recover a judgment against said county for services rendered by appellee as an attorney in defense of a person charged with the crime of rape, in the circuit court of said county, under an appointment by said court, and to compel said county council, by writ of mandate, to make an appropriation to pay the same, and to compel the said auditor to issue a warrant therefor on the county treasurer. A trial of said cause resulted in a judgment against appellants as prayed for in the complaint.
It was alleged in the complaint “that appellee was appointed by the Miami Circuit Court, at its April term, 1900, to render services as an attorney in the defense of Erank L. Rennols, charged in said court with the crime of rape; that he accepted said appointment, and rendered services as attorney in said cause of the value of $250, a bill of particulars of which is filed herewith, and marked exhibit A; that on the 2d day of July, 1900, said court made an allowance of $250 for said services; that on July 2, 1900, appellee presented a certified copy of said allowance to the auditor of said county, who issued a warrant for $45, which sum was paid to appellee; that appellee demanded of said auditor a warrant on the treasurer of said county for the residue of the amount of said allowance remaining unpaid, but said auditor refused, and still refuses, to issue a warrant therefor, for the reason that there is no money in the treasury of the county appropriated by the county council to pay the same; that in making estimates of court expenses for the year ending December 31, 1900, the clerk
A county is a subdivision of the State, created by the sovereign power for governmental purposes. Such subdivisions are instrumentalities of government and exercise the powers delegated by the State. 7 Am. & Eng. Ency. Law (2d ed.), 900 et seq.; White v. Board, etc., 129 Ind. 396; Board, etc., v. Daily, 132 Ind. 73; Board, etc., v. Rickel, 106 Ind. 501, 503; Dillon, Mun. Corp. (3d ed.), §§23, 53; 1 Beach, Pub. Corp., §8. If such powers are delegated by the legislature, and not by the Constitution, the legislature may enlarge, diminish, or withdraw the same entirely, in the absence of a constitutional restriction.
The act approved March 3, 1899 (Acts 1899, pp. 343-365, §§5594g-5594e2 Burns 1901), commonly known as the county reform law, made many radical changes in the manner of doing county business, and as to the powers of .boards of commissioners, officers, and courts to create a liability against the county. It is provided by §2Y of said
It appears from the complaint that all of the amount appropriated by the county council for the purpose of paying for services of attorneys in defending poor persons charged with crime had been expended, except $45, at the
It appears from the record that the process issued and served upon the Miami county council, one of the appellants, was a summons in the ordinary form, and not an alternative writ of mandate. The Miami county council, by its attorneys, entered a special appearance to said proceeding in the court below, and filed a motion to quash said summons, for the reason that it was an ordinary summons, and not an alternative writ. This motion the court overruled, to which said appellant reserved an exception. This ruling of the court is assigned as error in this court.
The mode of acquiring jurisdiction over the defendant in a proceeding for a writ of mandate is not by the service of an ordinary summons, but by service' of an alternative writ of mandate. §1184 Burns 1901, §1170 E. S. 1881 and Horner 1901; Wren v. City of Indianapolis, 96 Ind. 206, 211; Potts v. State, ex rel., 75 Ind. 336, and cases cited; Jessup v. Carey, 61 Ind. 584, 590. See, also, Johnson v. Smith, 64 Ind. 275, 280; 13 Ency. Pl. & Pr., 760-762; Works’ Prac. (3d ed.), §§217, 1447, 1448. In Jessup v. Carey, supra, at page 590, it was said: “It does not appear from the record that an alternative writ of mandate was applied for or issued in this action; but the appellants appeared, probably in obedience to an ordinary summons, and demurred to and answered the appellee’s verified complaint, as containing his cause of action. The proceeding is certainly informal and defective in its inception. The suit
- The issuance and service of the alternative writ may be waived by a full appearance to the action. Wren v. City of Indianapolis, 96 Ind. 206, 211; Pfister v. State, ex rel., 82 Ind. 382. In this case, said appellant, after the court overruled its motion to quash said summons, filed a demurrer to the complaint, which was overruled, after which it filed an answer to the merits of the cause, and thus entered a full appearance to the action; but said appellant did not thereby waive its right to present for review said ruling of the court on the motion to quash said summons. American, etc., Ins. Co. v. Mason, 159 Ind. 15, and cases cited; 2 Ency. Pl. & Pr., 629, 630; 3 Cyc. Law & Proc., 525, 526; Elliott, App. Proc., §§677, 678; Perkins v. Hayward, 132 Ind. 95, 100, 101; Chandler v. Citizens Nat. Bank, 119 Ind. 601, 603. It follows that the court below erred in overruling the motion to quash said summons. The action of the court in overruling the motion of appellant Macy, county auditor, to quash said summons as to him was erroneous for the same reason.
As the facts alleged in the complaint did not show that appellee, in a court having jurisdiction of the parties and the subject-matter of the action, had recovered a judgment against the county, in its corporate capacity, for his said services as attorney in said cause, the same was not
The action against the county auditor proceeds upon the theory that it is his duty to issue a warrant in favor of appellee for the amount of his claim, when the same is appropriated by the county council. As the complaint is not sufficient against the county council, it follows that it was not sufficient against said auditor-. The court therefore erred in overruling the demurrer of the appellant Macy, auditor of said county, to the complaint.
Judgment reversed, with instructions to sustain tibe demurrer of the board of commissioners to the complaint, and to sustain the motions of the county council and .Macy, auditor, to quash the summons.
Grillett, J., Concurs in the result.