69 Ind. 102 | Ind. | 1879
In this case the appellee’s relators, “for themselves and on behalf of the patrons of school district-No. 7, in Center township,” in Vanderburgh county, Indiana, sued for a peremptory mandate to compel the appellant, George W. Hornby, the trustee of said township, to proceed to the erection of a certain school-house in said school district No. 7. It does not appear from the record that any alternative mandate was issued in the cause, but the appellant appeared therein and demurred for the want of sufficient facts to the relators’ verified complaint, which demurrer was overruled by the court, and to this ruling the appellant accepted. He then answered in two paragraphs, of which the first was a general denial, and the second was a special defence. To the second paragraph of answer the appellees replied by a general denial.
The issues joined were tried by the court, and a finding was made for the appellee’s relators. The appellant’s motions for a new trial and in arrest of judgment, in the order named, having each been overruled and his exception entered to each of these decisions, the court rendered judgment on its finding for a peremptory mandate, as prayed for in the relators’ verified complaint.
The following decisions of the court below have been assigned as errors by the appellant, in this court:
1. The overruling of his demurrer to the relators’ com,plaint;
2. The overruling of his motion for a new trial;
3. The overruling of his motion in arrest of judgment; and,
4. In rendering judgment for a mandate against him, whereas the judgment should have been in his favor, and for the dismissal of the relators’ complaint.
The first and third of these alleged errors present for decision the question of the sufficiency of the facts stated in the relators’ verified complaint to entitle them to the relief
For the reasons given, we are of the opinion that the facts stated in the relators’ complaint, in the case now before us, Avere not sufficient to constitute a cause of action in their favor against the appellant as the trustee of Center ToAvnship, the civil corporation ; and he was not sued in this action as the trustee of Center School Township, the school corporation. The court erred, Ave think, in overruling-the appellant’s demuri’er to the complaint, and his motion in axTest of judgment. Our conclusion in x’egard to the sufficiexicy of the complaint renders it uxxnecessary for us to consider or decide any of the questions arising under the other alleged errors.