151 Ind. 94 | Ind. | 1898
On January 9, 1897, the relator .commenced this action to compel appellees, the auditor and treasurer of Clinton county, to perform certain alleged duties in the collection of a railroad tax voted by Center township, in said county, in aid of the
The board of commissioners of Clinton county had jurisdiction of the question presented by the petition of Barner et al., to cancel the aid voted, as well as the application of Bayless for an order to collect said
Under the provisions of section 7865, Burns’ R. S. 1894 (5778, Horner’s R. S. 1897) the White Circuit Court was authorized to make a final determination of the proceedings appealed from, and cause the same to be executed; or it had the power to send the same down to the'board with orders how to proceed, and require such board to comply with the final determination made by the court in the premises. The White Circuit Court found that the railroad company had, within the proper time, expended in the construction
It is not alleged, however, in the application or alternative writs, that the White Circuit Court rendered such judgment; but, on the contrary, it is alleged that said court rendered judgment that “the board of commissioners of said county of Clinton, in the State of Indiana, shall enter upon its record an order requiring that said tax be immediately collected by the treasurer of said county as though the same had never been suspended.” It, in effect, as it was fully empowered to do, sent the same down to the board of commissioners of said county, with orders that such board enter such final order and judgment. This order was binding on the board of commissioners of Clinton county, as a judicial body; and they were required to make and enter such order and judgment as directed, the same as a circuit court is required.to perform and execute the orders and mandates of this court made in a case appealed from such court. It is not necessary, in order to bind an inferior court in a case appealed from it, that the member or members thereof should be made parties to the case on appeal. Until said order of the White Circuit Court is, entered by the board of commissioners of Clinton county on its records, appellant cannot claim or assert any rights thereunder against appellees. It is not averred that the board of commissioners of Clinton county ever entered said order on its records. Such allegation was necessary to render the application and alternative writs sufficient to withstand the demurrer.
It is claimed by appellees that this court, in the opinion affirming the judgment of the White Circuit Court in Barner v. Bayless, supra, held that part of said judgment upon which appellant bases its cause of action void, and that, therefore, only that part of said judgment not held void was affirmed by this court, and that as the part of said judgment upon which appellant rélies is void, no right can be asserted thereunder. The allegation in the complaint and alternative writs in regard to the action of this court in said case of Barner v. Bayless, supra, is that the “proceedings and judgment of the White Circuit Court were in all things affirmed.” We are not at liberty to disregard the allegations of the complaint and alternative writs, which were admitted by the demurrer to be true, and look to the opinion of this court in said cause in determining the question of the sufficiency of the complaint and alternative writs. As we have already said, we can only know what was adjudged by the White Circuit Court in said cause, and by this court on appeal, from the allegations in the complaint and alternative writs, and if the judgment alleged to have been rendered, or any part