37 Ind. App. 186 | Ind. Ct. App. | 1906
This is the second appeal. Zuelly v. Casper (1903), 160 Ind. 455, 63 L. R. A. 133. Before this action was begun the Perry Circuit Court enjoined the board of county commissioners from proceeding with its employed expert accountant to investigate the books, papers and records of the offices of auditor and treasurer of said county. An appeal was taken by the board and the person with whom it had contracted. Pending the appeal there was a change in the membership of the board. It thereupon filed a dismissal; but its coparty continued in court, and the judgment was reversed. Board, etc., v. Gardner (1900), 155 Ind. 165.
Before the change in membership above referred to took place, an action was begun by the county against appellee Casper for the recovery of alleged illegal fees held by him. The questions presented by this appeal principally arise, as will be hereinafter shown, from the disposition made of that action.
The illegal fees which are sought to be recovered in this suit include those to recover which action was originally brought by the board of commissioners, although a large number of items are included in the bill of particulars in this case which were not embraced in that one. It is claimed by appellees that the matters which are now sought to be litigated were adjudicated in the prior action, that the county is estopped by conduct from setting up its claim, that the unwillingness of the board to bring this suit was not proved, that it can not be maintained without showing a return of, or an offer in the complaint to return, the amount paid by Casper, as hereafter set out, and that the action is barred by the statute of limitations. The circumstances connected with the disposition of the prior action are, according to the testimony of Cassidy, who was then a member of the board, that one of Casper’s lawyers called on him and said: “How, we would like to have a talk about this matter. It is coming up for trial to-morrow morning, and, if we could settle this matter, probably it would be better.” The meeting took place and resulted in the execution of an instrument in terms as follows:
“Cannelton, Indiana, May 8, 1900. Eeceived of Martin E. Casper, the sum of $1,425.77, same in full of all dues, demands, rights and credits clue and owing to the county of Perry, in the State of Indiana, from said Martin E. Casper for money illegally paid him by the board of commissioners of said county at the time and while said Casper was auditor of said*190 county, said money being paid in by said board and illegally allowed him as such auditor for service as such auditor. That this settlement and said amount as received as aforesaid is in full satisfaction of all demands of whatsoever nature or description due and owing to said county by said Casper as such auditor, and that the suit now pending against him before the Perry Circuit Court, No. 266 on the docket of said court, wherein the board of commissioners is plaintiff, and said Martin E. Casper is defendant, shall this day be dismissed.”
An entry was thereupon made in the commissioners’ record following the language of the receipt and a dismissal entered in the circuit court as follows: “And on motion of plaintiff this cause is dismissed by agreement, at the plaintiff’s cost.”
The questions, both of law and fact, connected with the application of the statute of limitations, are questions of difficulty. There does not seem to have been any exigency requiring immediate action, so far as the county was concerned, and an immediate determination by a court of competent jurisdiction, whose conclusions were reviewable,
The judgment is reversed, and the cause remanded, with instructions to sustain appellants’ motion for a new trial and for further proceedings.