167 Ind. 31 | Ind. | 1906
Appellant sued John Parratt, trustee of Rich Grove township, Pulaski county, Indiana, together with said Rich Grove township, to recover a money judgment. The complaint alleges the following, facts: John Parratt, as trustee of Rich Grove township, Pulaski county, Indiana, in the year 1902, employed George Turner to clean out allotment No. 13, of a public ditch, known as the “Ender ditch,” situated in said township. Turner, under and in pursuance of the contract of employment, cleaned out the ditch allotment, for which labor he was to be paid $90 out of the funds of said Rich Grove township. Upon completion of the work the trustee issued to him the following certificate, which was filed with and made a part of the complaint:
*33 “State of Indiana, ) Pulaski County. J. ) ss.
I, John Parratt, trustee of Rich Grove township, in said county and State aforesaid, do hereby certify that George Turner, by my direction as said trustee, has done labor in cleaning out allotment No. 13 in the Ender ditch, assessed to the south half of the northwest quarter and northeast quarter of the southwest quarter of section thirty-one, township thirty-one north, range three west, in Pulaski county, Indiana, in the name of W. G. and Levi Ender, to the amount of $90, and he is entitled to receive said sum out of the township funds of said township as soon as the assessment now on file in the auditor’s office against said land above described is paid. Dated December 12, 1902. John Parratt,
Trustee of Rich Grove Township.”
On July 18, 1903, Turner, for a valuable consideration, assigned in writing this certificate to appellant, who, at and prior to the commencement of this action, was the bona fide holder thereof. No part of the $90 has been paid, and the township trustee has refused to pay the same, or any part thereof, and has wholly failed to collect the assessment for the allotment.
Appellee Parratt, the trustee, appeared to the action and- filed a motion to dismiss the same, so far as he was concerned, assigning as a reason therefor that he was not the proper party, either in his individual or official capacity. This motion, as the record recites, was sustained. Rich Grove township demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Its demurrer was sustained, and on the appellant’s refusal to plead further judgment was rendered against him for cost.
It will be observed that under the provisions of this statute it is made the duty of the proper township trustee, upon the failure of the landowner to perform the work allotted to him, at once to proceed to have the same completed. Said official is thereby authorized to employ some
It is manifest that the complaint under the facts therein alleged does not state a right of action against the township, and the demurrer of the latter thereto was properly sustained.
Judgment affirmed.