Pipe Creek School Township v. Wagler

81 Ind. App. 419 | Ind. Ct. App. | 1923

Nichols, C. J.

Since this appeal, appellee Franklin C. Wagler has been elected as the trustee of appellant Pipe Creek School Township, and on January 1, 1923, succeeded appellant Jesse Mumaugh as such trustee. William Little, Marshall Smith, and S. A. Eshelman have been elected as members of the advisory board of such township and on January 1, 1923, they succeeded appellants George A. Wright, Elmer Pfaff and E. J. Spangler as such advisory board. On their application, such new township officers, by the order of this court, have been substituted as parties appellant. They now file their motion to dismiss this appeal. Eli S. Metzger, Wm. E. Dailey, Jno. N. Sullivan, Ira B. Craft and Aaron B. Metzger, taxpayers of said township, have filed their objections to the dismissal of said appeal, but none of these objectors were parties to the action below nor are they parties to this appeal. Their objections, therefore, though they seem to suggest matters of public interest and necessity and are unchallenged by counter affidavits, cannot be considered. Mears v. Boston, etc., R. Co. (1855), 71 Mass. 371. Only parties to an action or their privies can be heard in the disposition thereof.

On January 1, 1923, the former trustee and advisory board lost all control, including the right to prosecute this appeal, over the affairs of Pipe Creek School Township, by virtue of the election and qualification of their successors in office. Everroad v. Flatrock Township (1875), 49 Ind. 451; Steinback v. State, ex rel. (1872), 38 Ind. 483; Barker v. Norton (1842), 3 Hill (N. Y.) 474; Wright v. Smith (1851), 13 Barb. (N. Y.) 414. The new trustee and the new advisory board are now in complete control Of the management of the affairs of said township, and, as such, under the law, may direct its policies, and may sue and be sued as such officers. Their motion to dismiss this appeal cannot be denied.

Appeal dismissed.