State ex rel. Steiner v. Fiscus , 181 Ind. 667 ( 1914 )

Erwin, J.

This was an action by appellant, State of Indiana, on the relation of George P. Steiner, Trustee of Jefferson Township, Owen County, against Prank Piscus, extrustee of said township, and his bondsman, for the recovery of money alleged to be due said township from appellee, Piscus. The complaint is in three paragraphs, each substantially alleging the same facts, and averring that the appellee, Piscus, as trustee had misappropriated and converted to his own nse, funds belonging to the township and that he had expended without authority of law large sums of money, and that he had illegally overdrawn the several funds, belonging to said township to the sum of $1,848.69. An answer was filed, containing five paragraphs, of which the first and second were withdrawn. A demurrer to the third, fourth and fifth paragraphs was overruled, which rulings are assigned as error in this court. The constitutionality of the act of March 7, 1911 (Acts 1911 p. 693), is sought to be questioned in this court. However, under the conclusion reached, we are not required to pass upon the legality of that act.

1.

The third paragraph of answer was filed by all of the defendants, ahd alleges, among other things, that the money for which a recovery is sought in the complaint, was expended by the trustee in payment of legal indebtedness of said township; and the indebtedness chargeable against each fund was paid therefrom; that all the money was expended in paying for services of school teachers, duly licensed and employed; for necessary repair and improvement of highways and bridges; the purchase of necessary property and supplies for schools and various other things; for service alleged to have been lawful and necessary; that all the things and services paid for, were of the full purchase value, and were proper and necessary for the use of the civil and school township; and that the latter received and retains the entire benefit thereof; and that no part of the money that came into his hands was directly or indirectly converted to his own use. The answer fails to aver that the township advisory board ever made any appropriations of the funds by him expended. The answer is the substantial equivalent of that of the sureties in the case of Miller v. Jackson Tp. (1912), 178 Ind. 503, 99 N. E. 102, 111, which was held sufficient, by this court, and on the authority of that case we hold that the court did not err in overruling appellant’s demurrer to the third paragraph of answer in this ease.

2.

The appellee Fiseus, filed a fourth paragraph of answer, which was by way of counterclaim, and a fifth paragraph, which was by way of set-off. The appellant filed a demurrer to each paragraph on the sole ground that it does not “state facts sufficient-to constitute a cause of defense to plaintiff’s complaint. ” It has been held repeatedly by this court that a demurrer to ‘a paragraph of counterclaim or set-off must be the same in form as a demurrer to a complaint. Duffy v. England (1911), 176 Ind. 575, 584, 96 N. E. 704, and cases cited. It follows that neither the fourth nor fifth paragraph was challenged by appellant’s demurrer.

There being no error in the rulings of the- court, the judgment is affirmed.