81 Ind. 69 | Ind. | 1881
The appellant sued the appellee to recover back money alleged to have been paid to it through a mistake in a settlement made by the appellant as trustee of the appellee, with the Board of Commissioners of Scott County.
The complaint is in three paragraphs. The first and second are substantially the same. They allege that on the 21st day of July, 1864, the appellee was indebted to one William Kinsey in the sum of $162, for work and labor performed, and materials furnished in building a school-house for the appellee, and within its limits; that Thomas Carr, then trustee of the appellee, executed and delivered to said Kinsey a warrant
So much of the settlement with the board as is material is as follows:
“ Commissioners’ Couet, Sept. Teem, 1867.
“ Now comes John B. Butt, Sr., ex-trustee of Jennings township, and makes final settlement, to wit:
Dr., to common school fund, June term, 1867 . . $675 30
Cr., by voucher on treasurer......... 675 30
Dr., to road fund..............$316 65
Cr., by certificate from treasurer........ 306 77
$9 88
■Cr., by voucher cash over treasurer....... 9 88
Due ex-trustee from township fund.......$162 87
Due ex-trustee from special school fund..... 338 43”
The copy of the record filed with the third paragraph of the complaint, shows that the common school fund and the road fund, in the hands of the appellant, had been adjusted and settled, but nothing more is said about the special school fund.
The appellant demurred to each paragraph of the com
The error assigned is the sustaining of the demurrers to-the complaint.
Did the court err in sustaining the demurrers to the first and second paragraphs of the complaint ? These paragraphs are substantially the same. By the law in force at the time,, it was provided that “ The trustee shall examine and settle all accounts and demands chargeable against his township,, and shall keep an accurate account current with his township,, which shall be so arranged and kept as to show the amount received and paid out on account of separate and distinct funds, and to whom paid, as well as the whole receipts and expenditures, by one general account, and shall file all accounts as vouchers, and report the same to the county-board in his annual settlement therewith.” Section 10, 1 R. S. 1876, p. 901. Section 7 of the act of 1865, 3 Ind. Stat. 442, in force’ at the time this mistake is alleged to have been made, is substantially the same as the above provision, and requires such accounts to be kept by the trustee of the special school fund.
The manifest purpose of these provisions of the statute is-to require the trustee to keep such a record of the receipts and expenditures of money as will render such a mistake as that alleged to have been made by the appellant impossible — to-compel him to keep an accurate recoi’d of the money by him received and paid out as trustee, so that he may know at all times just how he stands with his township. If the appellant kept an account of the money paid out by him while trustee,, he had the means of knowing, at the time he settled with the board, though he had previously lost the warrant, how much he had paid Kinsey; if he did not keep an account of the money so paid, he was guilty of gross and inexcusable official negligence and misconduct. The appellant says, in the paragraphs under consideration, that he kept no account of the money paid to Kinsey. He offers no excuse for this gross
It is said, in the case of Board of Commissioners, etc., v. Gregory, 42 Ind. 32, that money, paid through a mistake of facts, with the means of knowing the facts within the reach of the party making the mistake, can not be recovered back. Why not ? Obviously because in such case the mistake is the result of the party’s negligence. This is the only reason for which the recovery could be denied. In this case, it may be said that, at the time the mistake occurred, the appellant had not the means of knowing the facts. But his want of the means of knowing the facts, as well as the mistake itself, was the result of his gross official negligence. It may be said that mistakes always result from omissions or inadvertence. But there is a palpable difference between omissions and gross and wilful neglect of duty. The former are excusable; the latter are without excuse. Reasonable diligence in the discharge of his duty would have rendered the mistake which the appellant claims to have made impossible; to grant him the relief asked, would be to encourage negligence in the discharge of official duty. This should not be done. Beaver v. Trittipo, 24 Ind. 41. We think there was no error in sustaining the demurrers to the first and second paragraphs of the complaint.
Did the court err in sustaining the demurrer to the third paragraph of the complaint?
The appellee insists that it does not state facts sufficient to
The cause of action is shown to have accrued in September, 1867,more than six years before the commencement of thesuit. It is also shown that from April, 1865, to April, 1867, the appellant was acting as the duly elected and qualified trustee of the appellee, and that, on the 3d day of September, 1867, he •was present before the board of commissioners of Scott county, settling his accounts as such trustee. It therefore appears from the complaint, not by direct averment, but by inevitable inference, that, at the time the cause of action accrued, the appellee existed in Indiana and could not exist elsewhere; that the appellant was nota married woman; that he was not under the age of twenty-one years, nor of unsound mind, nor imprisoned, nor out of the United States. It follows, therefore,
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellant.