15 Ind. App. 261 | Ind. Ct. App. | 1896
The appellant Gustus Killian was elected trustee of Carter township, in Spencer county, Indiana, on the 2d day of April, 1888, and served as such until August, 1890.
The appellee, as his successor, brought this action, alleging, in one paragraph of his complaint, that on the 11th day of April, 1888, appellant Killian, with his co-appellants, Lawrence Ofer, Willis S. Bryant, George J. Hufnagel, William Schwartz, Michael Heichelbach, Joseph Hang, and Jacob Singer, as his sureties, executed his bond as such trus
Each of the appellants, except Killian, filed a separate demurrer, for want of facts, to each paragraph of the complaint, which were overruled and exceptions saved.
The appellant Killian filed demurrers to the second, third, fourth, and fifth paragraphs of the complaint, which were also overruled and the rulings excepted to.
All of the appellants, except Killian, jointly assign errors in this court, the first, second, third, and fourth specifications of which are predicated upon rulings, if any there are in the record of the court below, on joint demurrers filed .by them to the second, third, fourth, and fifth paragraphs of the complaint We have been unable to find in the record a joint demurrer filed fey the said appellants to the complaint, or either paragraph thereof, neither have we been able to find any ruling of the court on such a demurrer. A specification of error must rest upon a ruling of the court made against the party assigning it, and several
The appellant Killian has separately assigned error, and thereunder insists that the court below erred in overruling his demurrers to the fourth and fifth paragraphs of the complaint. It is urged against these paragraphs, that the facts alleged fail to show that he did not account for all of the money he received belonging to said fund,, hence no breach of the bond is shown. We think the facts alleged in the fourth paragraph of the complaint are, that of the moneys received by him, he failed to account for the sum of $100.00; that he borrowed that amount of money, and expended it for the benefit of the school township, and was given credit for the sum thus expended, but that in borrowing said sum he issued the order of the township therefor, and then failed to charge himself with the money received.
Of course, he was chargeable with all moneys received, whether in the regular way, or by pledging the credit of the township, and was entitled to have credit for all moneys expended. Unless he charged himself with the sums borrowed, and for which the obligation of the township was outstanding, he was not entitled to credit when he had expended it. The fourth and fifth paragraphs of the complaint state a canse, of action against the appellant Killian, and the court did not err in overruling his demurrers thereto.
The fifth, sixth, and seventh specifications of the joint errors assigned, which are as follows: (5) “The court erred in sustaining the demurrer of the appellee
In other words, the contention, if we fully understand it, is, that the sureties are liable if the act of the principal, in borrowing money, was a lawful act; but, if his acts were unlawful, the sureties are not holden.
The question that must determine the liability of the appellants, except the appellant Killian, as we view the case, is settled when we fix the liability or non-liability of the school township for the payment of the orders issued for the several sums borrowed.
If the school township is holden for the payment of the orders issued for the money borrowed, the appellants would be liable on the bond for the misapplication or misappropriation thereof; but if the school township is not holden for the money borrowed, such
It is quite well settled that the statute does not expressly authorize township trustees to borrow money and bind the township, except by a compliance with sections 6006 and 6007, R. S. 1881 (sections 8081 and 8082, Burns’Rev. 1894); but it has been held, in some cases, that power to create an indebtedness in certain instances, and for certain purposes, is implied. If the indebtedness created, whether for materials furnished or labor performed, or for money borrowed and used to pay therefor, accrued to and was used for the benefit of and Avas necessary for the welfare of the township, the township would be liable. For, while the trustee has no express power to borrow money for school purposes, except upon compliance with the sections of statute, supra, if he does obtain it, and rightfully expends it for the benefit of the schools of his township, the township is liable for its repayment.
In the case of Bicknell, Admx., v. Widner School Tp., 73 Ind. 501, it was held that Avhere money borrowed by the township trustee was actually used for necessary school purposes, the township was liable, even though the trustee had no express power to borrow money and pledge the credit of the township for its repayment.
It is expressly alleged, in the complaint under consideration, that these several sums borrowed by the appellant Killian, as trustee, were expended for work and material for said school township. And the court,
'The court did not err in overruling the motion of the appellant Killian for a new trial. There is ample evidence to sustain the findings of the court as against him, inasmuch as he does not urge for a reversal the fact that the bond sued on was not given in evidence. We are constrained to hold, however, that the court did err in overruling the motion of the other appellants for a new trial. Under the issues formed, an answer of general denial having been filed, the burden rested upon the appellee to prove that the appellants,
The judgment of the court below as to the appellants, Lawrence Ofer, William S. Bryant, George J. Hufnagel, William Schwartz, Michael Heichelbach, Joseph Hang, and Jacob Singer is reversed, with instructions to sustain their motion for a new trial. As to the appellant, Gustus Killian, the judgment is in all things affirmed.