175 Ind. 610 | Ind. | 1911
This was a mandate proceeding to require appellant to make an appropriation to pay a judgment recovered by relator Galimore against the Board of Commissioners of the County of Owen. Said board of commissioners, the auditor and the treasurer were parties, but have not joined in this appeal. A demurrer to the complaint was overruled, and the county council excepted and filed an answer in five paragraphs, to the second, third, fourth and fifth of which demurrers were sustained. The first paragraph was a general denial upon which trial was had and a judgment rendered for plaintiff.
The latter case was one in which the sole question de
The case of Advisory Board, etc., v. Levandowsky, supra, is based upon the proposition that the advisory board of a township can only maintain such suits as it is expressly authorized to maintain. Here, however, we have a statute with respect to county councils, authorizing suits to be brought against them for certain purposes, and requiring the board of commissioners and the county auditor to be joined with them (§5945 Burns 1908, Acts 1899 p. 343, §28), and appellees have elected to follow that statute here. True, we have no statute expressly providing that county councils may appeal, but as they may be sued'in certain civil cases, it would be anomalous to deny them the right of appeal in such cases. We have a statute (§671 Burns 1908, §632 R. S. 1881) that provides for appeals “from the circuit courts and superior courts to the Supreme Court, by either party, from all final judgments.” Relators secured a final judgment, requiring the appropriation by the county council of the amount necessary to pay their judgments, and it would require a radical departure from the recognized practice to hold that they may not appeal. They have more than mere ministerial duties to perform. They have the exclusive power to fix the tax rate, also to fix the amount they will appropriate, not exceeding the estimates furnished to them, and the exclusive power to authorize the borrowing of money, and as to those appropriations, necessary after the annual appropriation, it requires the concurrence of two-thirds of the members. §§5932, 5937, 5938, 5949 Burns 1908, Acts 1899 p. 343, §§15, 20, 21, 32. If they may not appeal in this kind of a case, neither could they upon the character of questions confided to them as shown before, and it would certainly be unwise, if not in direct violation of the statute, to deny
The complaint alleges, in substance, that on October 26, 1909, relator Galimore recovered a judgment against the Board of Commissioners of the County of Owen for $3,024.40 and costs; that no appeal has been perfected, and the judgment has not been paid nor replevied; that about November 6, 1909, said relator filed a certified copy of such judgment in the office of the auditor of Owen county; that, as said relator is informed and believes, there was a sufficient amount of money in the county treasury belonging to said county with which to pay said judgment, interest and costs, but because no appropriation had been made for the payment of the judgment the auditor refused to draw his warrant; that the auditor and the board of commissioners fixed a day in November, 1909, for a special meeting of the county council, and one week before the date fixed for said meeting prepared and filed in the auditor’s office an estimate of the amount necessary to pay the judgment, and also prepared an ordinance authorizing the appropriation; at said special session more than two-thirds of the members were present, and the estimate and ordinance were presented by the auditor and by relator Galimore and his attorney, and a request was made for the adoption of the ordinance, and the appropriation of sufficient funds to pay the judgment; that the council without cause or excuse neglected, failed and refused, and ever since has, failed and refused, and continues to refuse, to appropriate any money to pay such judgment; that before this action was brought, Galimore had assigned a portion of the judgment to his co-relator Hickam; that the total amount of the indebtedness of the county, including the judgment, interest and costs, does not exceed two per cent of the taxable property of the county. Prayer for a mandatory order of court against said defendants, and
The sufficiency of the complaint is challenged by an original assignment of error and upon the ruling on the demurrer, both assigning the want of facts sufficient to constitute a cause of action.
When the alternative writ is waived, the petition must stand in the place of the alternative writ and must be tested by the same rules. The prayer of the petition in this case being in the alternative, the petition was insufficient. State, ex rel., v. John, supra, and cases cited; State, ex rel., v. Adams Express Co. (1908), 171 Ind. 138, 19 L. R. A. (N. S.) 93.
It is a very serious question whether the petition is not also insufficient in failing to aver that there are available funds on hand, unappropriated, sufficient to pay the judgment. At any rate such facts, if stated, are only stated inferentially, and are deducible from a process of reasoning. The judgment must be reversed for the insufficiency of the petition, but as the questions presented by the answers may arise again, we shall determine those questions.
Appellant filed an answer in five paragraphs, the first of which was a general denial. The second paragraph alleges the recovery by relator Galimore of a judgment for $3,024.40 in gross; that part of said sum is due from the State, part from the county, and part from each of the thirteen townships of the county; that it is impossible to know what amount of appropriation should be made from the funds of the several taxing districts; that before any appropriation can be made the amounts to be appropriated from each must be shown, and that the county council should not be required to make an appropriation until the mem
The third, fourth and fifth paragraphs seek to attack the judgment as void, on the ground that it was procured by fraud and deceit practiced on the court.
The third, fourth and fifth paragraphs of answer show the rendition of the judgment on October 26, 1909, and the record shows the filing of the amended complaint in this proceeding on January 10, 1910, and it may be a very .serious question whether, if the county council had a right to attack the judgment at all, it would not have been required to do so directly. It is not shown in any paragraph when they learned the facts constituting the alleged fraud. See Shultz v. Shultz (1894), 136 Ind. 323, 43 Am. St. 320.
It was said in the latter case: “A party against whom an unauthorized or inequitable judgment has been obtained, whether by fraud or mistake, cannot treat the judgment as invalid until he has taken some proceeding, known to the law, to set it aside, or to secure its modification. Methods for obtaining a new trial, or to review a judgment for material new matter, or for error of law, are pointed out by the statute, and beyond the methods thus prescribed, courts possess inherent power, to an almost unlimited extent, to redress wrongs by modifying or setting aside judgments obtained by fraud or mistake. These methods, however, all contemplate proceedings in the case in which the unauthorized judgment is alleged to have been obtained. They give no countenance to the notion that a judgment, however wrongfully obtained, may be ignored, and the rights of the parties again inquired into, in a collateral proceeding. So long as the judgment stands, not being void, it concludes the parties upon the subjects therein determined.” Citing cases.
A stranger to a judgment may attack it collaterally only when he can show himself to be in some way affected by it; and the question is whether a county council has such interest as may be affected by the judgment. It is not a corporation. It acts as authorized by statute, and in the manner pointed out by the statute. Even before the creation of these boards, when the entire county business was confided to boards of commissioners, the latter possessed only statutory powers, and could not, as they cannot now, do any act not expressly or impliedly authorized by statute. The county is an involuntary corporation organized as a political subdivision of the State for governmental purposes, and exercises the powers delegated by the State, and for the State. State, ex rel., v. Goldthait (1909), 172 Ind. 210; State, ex rel., v. Board, etc. (1908), 170 Ind. 595; Kemp v. Adams (1905), 164 Ind. 258; Gavin v. Board, etc. (1885), 104 Ind. 201; Board, etc., v. State, ex rel. (1878), 61 Ind. 75; Wrought Iron Bridge Co. v. Board, etc. (1898), 19 Ind. App. 672.
A county council is not the county, nor does it represent the corporate entity. It is charged with the performance of certain duties, in which may be involved some discretion and business judgment, but it has, as such, no interest in a judgment against the county, and, whatever may be the merits of the claim in this particular case, it would clearly establish a bad precedent to hold that after a board of commissioners had litigated a claim to judg
For the reasons pointed out, the third, fourth and fifth paragraphs of answer were insufficient, and the demurrers properly sustained.
For the error in overruling the demurrer to the petition, the judgment is reversed, with instruction to the court below to sustain the demurrer to the petition.