57 Ind. App. 515 | Ind. Ct. App. | 1915
This action was brought by appellee against appellant to recover for services rendered by him for appellant as physician in its hospital for contagious diseases. By his first paragraph of complaint he seeks to recover for such services for a period of time from November 1, 1901, to November 1, 1903. In the second paragraph he avers that similar services were rendered by him for appellant from January 1, 1906, to July 15, 1907. The third paragraph contains the same averments set up in the first and second, in substance, and in addition thereto alleges that he demanded payment of his claim through the mayor of appellant, who requested appellee to refrain from bringing his suit until a similar suit brought by another party had been terminated in the courts, and promised that if such party was successful in his suit, that appellant would then promptly pay the amounts claimed by appellee. It is also averred in this paragraph that appellant through its mayor agreed that if appellee would so refrain from bringing his
Appellant first moved the court to strike out from the third paragraph of the complaint all that part thereof concerning the promises and agreements made by its mayor, for the reason that they could not in any way excuse laches on the part of appellee and could not operate as a waiver on the part of the city of its right to claim its proper defense. This motion was overruled. Separate demurrers were filed to the first and third paragraphs of the complaint which were overruled. Issues of fact were joined by a denial of the first and second paragraphs of complaint, and a further answer to the first and third paragraphs, wherein the six-year statute of limitations was pleaded. There was trial by the court, and judgment rendered for appellee in the sum of $2,450.67.
A demand in all respects similar to that part of appellee’s claim covered by his second paragraph of complaint has been fully determined by this court, so that we need not further consider that portion of appellee’s case, as it must be held to have been established. City of Indianapolis v. Martin (1910), 45 Ind. App. 256, 89 N. E. 599.
The other proposition presented by appellant, in different ways, for a reversal of the case is that the claim covered by the remaining paragraphs of the complaint is barred by the six-year statute of limitations. Appellee avers that by ordinance duly adopted on July 7, 1873, appellant city provided for and erected a hospital for contagious diseases, the management of which should be vested in the board of directors thereof, and by virtue of such ordinance he was chosen superintendent of the institution on November 1, 1901, and his salary fixed at $500 per annum to be paid as the salaries of other city officers are paid; that he served in
Appellant has cited Mathesie v. Board, etc. (1882), 82 Ind. 172, in support of its contention, but that case does not involve a salary fixed by law, but involves a claim which required proof to establish it. We are satisfied that all the cases cited by appellant are correctly decided. Sound policy and elementary principles of law require prompt action on the part of officials who seek relief on account of mistakes made while performing their official duties, but these eases do not fall within the class of cases which we are here considering. We hold therefore that
Note. — Reported in 107 N. E. 479. As to who may plead the statute of limitations, see 104 Am. St. 742. See, also, 25 Cyc. 1053.