40 Ind. App. 542 | Ind. Ct. App. | 1907
Appellees, taxpayers of Lake county, brought this suit for and on behalf of the county against appellants to recover $300, money alleged to belong to the county and received by appellant George M. Eder, and by him converted to his own use. A complaint in two paragraphs answered by a general denial formed the issues, which were submitted to the court for trial, resulting in a judgment for $300 against Eder in favor of Lake county. Each paragraph of the complaint was tested by a demurrer, which was overruled. A demurrer was sustained to Eder’s second and separate paragraph of answer, averring that the cause of action set up in the complaint did not accrue within sixty days prior to the
Errors assigned and argued relate to the action of the court in overruling Eder’s demurrer to each paragraph of the complaint, in sustaining appellee’s demurrer to Eder’s second paragraph of answer, and in stating its conclusions of law. Both paragraphs of the complaint are challenged on the ground that neither directly averred (1) that the board of commissioners was a party to the action; (2) that the parties constituting the board were such at the time the action was begun; (3) that the parties upon whom the demand was made by appellee to bring suit constituted the board of commissioners at that time.
It is clear that neither paragraph was carefully drawn, but the question is, does each paragraph, when separately considered, state facts sufficient to withstand a demurrer for want of facts? This controversy grew out of the allowance and payment out of the county funds of a claim filed by Eder against the county on August 20, 1903, showing that on December 5, 1896, and for five years continuously theretofore, he was the clerk of said county, and as such officer, during the months of October and November, 1896, did, at the special instance and request of divers persons, namely, the chairman of the republican central committee and its officers, naturalize 300 foreigners without cost ór expense to such applicants, but at a cost and expense to said committee and its officers, who agreed to pay the same, and from whom he expected compensation therefor; that on December 5, 1896, in making out his quarterly report to the commissioners of said county, he paid to the county out of his own private funds the sum of $300, the same being the expense for naturalizing said foreigners, and for which he expected to be reimbursed by said parties agreeing to pay the same; that he has not been paid said sum; that said parties never intended to pay the same; that at the time of filing
Lastly, appellant contends that the court erred in its conclusions of law. Under this head it is argued that the charge made by the clerk of the circuit court for naturalizing foreigners belonged to such clerk as his own; that payments made by officers that are not due and owing to the county may be recovered; that the acts' of the board of commissioners can only be proved by its record; that the special findings do not show a refusal by the board to institute an action against Eder prior to the time it was commenced by appellees. The special findings show that Eder was clerk of the Lake Circuit Court from November, 1891, until November, 1899; that during the year 1896, at the direction of the officers of the republican central committee of Lake county, 300 unnaturalized foreigners in said county applied to Eder, as such clerk, for what is known as “first naturalization papers;” that, by virtue of an agreement between said officers and Eder, and at the special instance and request of said committee, and its promise and agreement to pay the costs of issuing said papers, said Eder issued to said applicants papers of naturalization; that the statutory charge amounted to $300; that nothing was said to these applicants about paying therefor, nor was any money collected from said applicants or any other person by Eder on account of such services; that after the issuing of said papers by Eder, as clerk, said committee refused to pay the bill therefor, and on December 5, 1896, after said committee had declined to pay said sum of $300, said Eder, out of his own private funds, paid to the treasurer of Lake county, to the credit of the clerk’s fund, $300 to cover the cost of naturalizing said foreigners, and the only money paid to said county on account of said services; that the money so paid was ap
It does not appear from the findings that the fees collected by Eder, as such clerk, and paid to the county treasurer, and the fees earned by him and collected by his successor, together with the $300, exceeded his salary. If it did not, he could not have been injured by the $300 payment, voluntarily made by him. He cites §§7913, 7914 Burns 1901, §§5811, 5812 R. S. 1881, as authorizing the action of the board in allowing his claim, and in support of his right to retain the money received on such allowance.
Judgment affirmed.