37 Ind. 198 | Ind. | 1871
This is an information in the name of the-State, on the relation of John J. Combs, against John R. Hudson. The object of the proceeding- is to inquire by what authority the defendant holds and exercises the office of county commissioner in the county of Green. The information charges that John R. Hudson, on the 6th day of September, 1869, did wrongfully and unlawfully intrude into the office of county commissioner, of the county of Green, in the
The defendant appeared, and answered in three paragraphs.
The relator demurred to the second and third paragraphs of the answer. Demurrer sustained.
The defendant excepted to this ruling.
The substance of the third paragraph of the answer is, that within ten days after the relator was declared elected, the appellee gave notice of contest, and filed a statement, which set out, in detail, the causes of contest; that, upon filing such statement, the auditor gave notice' to the clerk, and called the board of commissioners together; that notice was issued and served on contested of the time and place of trial, and that he had notice of the matter and questions to be tried; that the board of commissioners met at the time and place designated by the auditor; that the relator was called and defaulted and failed to- attend, and the court proceeded to hear the proof; that the case was tried on its merits and found for the appellee, and that he was duly commissioned, and had been acting under such commission. The record of that proceeding was made a part of this paragraph.
The first entry made by the board of commissioners in that case is in these words:
“Trial being called, comes now the said John R. Hudson, contestor, by Rose and Alexander, his attorneys, and proves,
The plaintiff filed a reply to the third paragraph of answer in these words:
“And the said plaintiff, for a reply to the third paragraph of the answer, says, that he ought not to be estopped or’ precluded by the matters and things alleged in the said third paragraph of the answer, for the reason that the proceedings and judgment of the said board of commissioners were-illegal and void, for the reason that the said board of commissioners had no jurisdiction of the said cause, or the person of the defendant in that action and the plaintiff in this action, because the said contestee in the said proceedings had not been notified of the pending of such proceedings in the manner required by the statute, as will more fully appear by. reference to the notice issued by the auditor, and delivered to the sheriff of the said county, and his return thereon, copies of which are filed herewith, and hereof made a part, which notice and the return thereon are in the words and figures as follows, to wit:
‘State of Indiana, Green County, ss:
‘The State of Indiana to the Sheriff of Green county, greeting:
‘You are hereby commanded to summon John J. Combs to appear before the board of commissioners of said county, on the 7th day of November, 1868, at the court house in Bloomfield, to answer in a case of contested election for county commissioner, first district, wherein John R. Hudson
‘Witness my hand and official seal this 21st day of October, 1868.
[Seal] O. T. Baker,
‘Auditor Green county.’
“Which writ has the following sheriff’s return on it:
‘Served on the within named John J. Combs, by reading and delivering to him a copy of the order, dated this 23d day of October, 1868. ' F. M. Dugger, Sheriff
‘ByJames Harrah, Deputy.’
“That the finding of the said board of commissioners, that the defendant in that proceeding ‘had been duly served with notice,’ was untrue in fact, and not sustained by the return of the sheriff on the said notice.”
The defendant demurred to this reply. The demurrer was sustained, exception taken, and the plaintiff refused to reply further. The court rendered -final judgment in favor of the defendant, and plaintiff prayed an appeal to the Supreme Court, which was granted.
The errors assigned and argued are, first, that the court erred in overruling the demurrer to the third paragraph of the answer; second, the court, erred in sustaining the demurrer to the second paragraph of the reply, which was a reply to the third paragraph of the answer. We have no . doubt that the third paragraph of the answer was good, as it showed that the questions, things, rights, and matters set up in this suit had before been adjudged and tried before and by a tribunal of competent jurisdiction.
The board of commissioners had jurisdiction of the subject-matter. The subject-matter was the contest of elections. 1 G. & H. 316.
The next and only remaining question is, was the reply sufficient? The notice to the cóntestee and the return-of the sheriff were not made a part of the third paragraph of the answer, nor were they set out in the record accompanying and made a part of it; but the record recites that It was
What is intended by the order, we cannot say; but it is manifest that no order, a copy of which could be delivered, had been made, for the commissioners had not then met to make any order. The reply shows that the service was not such as' the statute requires, and that the board of commissioners had acquired no jurisdiction of the defendant. Horner v. Doe, 1 Ind. 130; Woodhull v. Freeman, 21 Ind. 229; Doty v. Brown, 4Comst. 71; Packet Company v. Sickles, 5 Wal. 580.
The court should have overruled the demurrer to the reply, and allowed both parties to prove what was-the actual service made.
The judgment is reversed, at the costs of the appellee, with instructions to overrule the demurrer to the second paragraph of the reply to the third paragraph of the answer.