The appellant was elected school trustee and president of the school board of the school town of Mitchell, in Lawrence county, Indiana, on the 6th day of September, 1890. At that time, and ever since, said appellant has been and was holding the office of postmaster at the said town of Mitchell, a lucrative office, retaining and holding the of
The first question discussed is the sufficiency of the complaint.
We have examined the complaint, and do not deem it necessary to set it out.
The complaint is clearly sufficient to withstand a demurrer. The action is properly prosecuted under the second subdivision of section 1131, R. S. 1881, to oust the appellant, and its averments are sufficient to make it good under that section. It is contended that there is no averment showing the holding of a legal office by the relator or the appellant, that it is designated as the office of school trustee of said town .of Mitchell. This objection is not well taken. The office is clearly designated. There can be no mistake about the office in controversy being the office of school trustee and president of the school board of the school town of Mitchell. In other words, it is clear from the averments of the complaint that the relator was elected school trustee of the school town of Mitchell by the trustees of the town of Mitchell, and that he was elected president of the school board, and gave bond and qualified as such, and that the appellant was holding the same office and exercising the functions thereof. The pleading is not as explicit as it ought to be, but it is not
It is next urged that the court erred in sustaining a demurrer to the second paragraph of appellant’s answer, the first being a general denial. All the evidence that could have been, introduced under this paragraph was admissible under the general denial, and the same defence could be made under the general denial as under this paragraph. It is a mere special denial of facts. While the proper practice would have been to have addressed to it a motion to strike it out, which should have been sustained, yet no error was committed by sustaining a demurrer to it.
It is further contended that the finding of the court is not sustained by sufficient evidence. It is urged that no demand was proven. To entitle the appellee to a judgment of ouster under the second subdivision of section 1131, no demand was necessary, and if the evidence entitled the appellee to some judgment in his favor it can not be set aside because the court gave too large a judgment, there having been no motion to modify. If the court granted the appellee greater relief than he was entitled to under the evidence, and the appellant desired to avoid that portion of the judgment not sustained by the evidence, he should have moved to modify the judgment.
Counsel for appellant discuss an alleged error in the admission of evidence, but the objection to the evidence discussed by counsel was not made to the evidence when introduced.
Counsel for appellant concede that the appellant holds both offices, and that he is entitled to hold but one of them, but contend that relator has not shown by legitimate evidence that he is entitled to the office of school trustee, and appellant seeks to defeat the action on that ground. Chambers v. State, ex rel., 127 Ind. 365; Foltz v. Kerlin, 105 Ind. 221. There is but little merit in the'appeal.
The case appears to have been fairly tried and determined on its merits in the court below, and there was no such error committed as should reverse the judgment.
Judgment affirmed, with costs.