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2. MUNICIPAL CORPORATIONS-CONTRACT FOR dered as a special civil engineer. On change SERVICES—CITY ENGINEER-COMPLAINT-DE

of venue the cause was tried in the Allen MURRER. Where, in an action against a city for en

superior court. The complaint is in three gineer's services under a contract of employ- paragraphs. ment, the first paragraph of the complaint did The first substantially alleges the follownot show that at the time plaintiff was employ

ing facts: On April 22, 1903, appellee coned the city had a regularly appointed and acting civil engineer, such paragraph was not de

tracted with the common council of the city murrable on the ground that plaintiff's employ- of Decatur to serve in its employ as a spement was an attempt on the part of the city cial engineer. It was agreed between him council to provide for the performance of the regular duties of a civil engineer in a manner

and the said city, through its common counother than that prescribed by Burns' Ann. St.

cil, that he was to perform services for the 1901, § 3476.]

city as a special engineer for a period of 3. FRAUDS, STATUTE OF-CONTRACT NOT TO BE one year on all contract work let by the city, PERFORMED WITHIN A YEAR.

in addition to the work and services usually Where plaintiff was employed by a city as city engineer for a period of one year, and

performed by a city civil engineer. It was there was nothing to show that plaintiff's work further agreed that, as a compensation for could not be completed within such time, the his services, he was to receive from and be contract was not within the statute of frauds

paid by said city $40 per month, and in ad(Burns' Ann. St. 1901, § 6629, subd. 5), as a contract not to be performed within a year.

dition to this he was to receive as a further [Ed. Note.-For cases in point, see vol. 23,

compensation 1 per cent. on all work and Cent. Dig. Frauds, Statute of, $$ 74–77.]

contracts let by the city when the aggregate 4. MUNICIPAL CORPORATIONS - CONTRACTS

of such contracts and work exceeded $15,000; Power.

the agreement between the city and him beContracts within ordinary corporate powers

ing that, if the contracts or work let by the of a city, though not in writing nor evidenced by resolution or ordinance of the city council,

city during the said year of his employment in the absence of statute requiring the same, or did not exceed $15,000, then he was to receive some statutory requirement or mode of proced- only $40 per month, but, if the said work so ure provided, are binding on the city.

let during the said year exceeded $15,000, [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $8 675–679.]

then he was, in addition to the $40 per month,

to receive and be paid by the city 1 per cent. 5. SAME-EMPLOYMENT OF SERVANT-DISCRETION-REVIEW.

on all amounts over and above $15,000 for The employment of an engineer by a city

the work and contracts let during said year. is a matter resting in the first instance in the It is shown that he entered into the employsound discretion of the city council, any abuse of which is subject to judicial review.

ment of the city under this contract, and [Ed. Note.-For cases in point, see vol. 36,

during the year for which he was employed Cent. Dig. Municipal Corporations, SS 582–588.]

he prepared and furnished for the use of 6. SAME - WARRANTS-VALIDITY-SIGNATURE

the city all plans and specifications, and did OF MAYOR.

all of its work of civil engineering; that the Burns' Ann. St. 1901, $ 3504, provides that work let by said city during said year in the city clerk shall draw all orders on the treas

the way of street improvements and upon urer of the city, which shall be signed by the mayor and countersigned by the clerk. Held,

which he performed the services of civil enthat the signature of the clerk was for the pur- gineer was in the aggregate $57,959.53, from pose of attesting the mayor's signature, and that which, after deducting $15,000, there remaina warrant signed by the clerk, but not by the

ed $42,959.53, upon which he was entitled, mayor, was therefore void. 7. APPEAL-REVIEW-HARMLESS ERROR.

under his contract, to receive and be paid Where, in an action against a city for sur

the city 1 per cent. on said sum, amountveyor's services, the complaint was in three par- ing to $429.59. This sum is now due and agraphs, and a demurrer to the third was im

wholly unpaid to him. Wherefore he deproperly overruled, the error could not be held harmless on appeal; there being nothing in the

mands judgment, etc. record proper to show that the judgment in The second paragraph alleges the same favor of plaintiff did not rest on the third para- facts as those averred in the first, but in graph.

addition thereto it is shown that on May 3, [Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$ 4098-4103.]

1904, appellee made out an itemized bill and

account for the amount due and owing to Appeal from Superior Court, Allen County; him by the city, which bill was fully verified 0. N. Heaton, Judge.

by him before the clerk of appellant city, Action by Geɔrge E. McKean against tñe

and was filed in the office of said official. city of Decatur. From a judgment for plain

On May 17, 1904, this bill was presented to tiff, defendant appeals. Transferred from

the common council of said city at its regular Appellate Court under section 13373, Burns'

session, and said body, after considering the Ann. St. 1901. Reversed, with instructions.

same, allowed said claim in favor of appellee, Colerick & Ninde, for appellant. Shaffer, and thereupon the clerk of the city drew and Peterson, J. C. Moran, and C. J. Lutz, for signed an order or warrant for the amount appellee.

of said claim so allowed, payable to appel

lee; that he receipted for said warrant and JORDAN, C. J. Appellee commenced this presented it to the mayor of said city for action in the Adams circuit court to recover his signature. The mayor, however, refused against the city of Decatur for services ren- to sign it, and appellee then presented the warrant to the treasurer of appellant city, for review, for the reason that the exception who refused to pay the same, for the reason reserved by appellant in en gros. In supthat it had not been signed by the mayor. port of this contention they cite Southern The said claim is still due and unpaid. Indiana R. R. Co. v. Harrell, 161 Ind. 689, Wherefore judgment is demanded for $500 68 N. E. 262, 63 L. R. A. 460. It may and all proper relief.

be said, however, that this case, and also The third paragraph is founded on what Noonan v. Bell, 159 Ind. 329, 64 N. E. 909, purports to be an order or warrant of the on the point in question, were expressly discity of Decatur in favor of appellee for approved in Whitesell v. Strickler (No. 20,937, $429.59, which amount had been duly allowed at this term) 78 N. E. 845. It will be noted by its common council on May 17, 1904, on that the demurrer in the case at bar was account of services which appellee had ren- addressed separately and severally to the dered for the city as a special civil engineer. first, second, and third paragraphs of the It is further alleged that the clerk of said complaint on the ground that neither stated city on May 18, 1904, issued to appellee a facts sufficient, etc., which demurrer, as the warrant or order for said sum so allowed by record recites, was by the court overruled the common council. It is averred that a as to each paragraph of the complaint, to copy of said warrant is filed with and made which ruling of the court the defendant exa part of the paragraph in question, marked cepts. Under the circumstances, the excep“Exhibit A.” It is further alleged that after tion manifestly was reserved and applied appellee received said warrant he presented separately to each of the paragraphs desigthe same to the treasurer of the city and nated in the demurrer, and is therefore suffidemanded payment thereof, that the treas- cient. Whitesell v. Strickler, supra. urer refused to pay said warrant, and that Appellant's counsel assails the first parathe said sum of $429.59, together with the graph of the complaint, first, on the ground interest thereon, is due and wholly unpaid. that under the facts therein alleged it is Wherefore judgment is demanded, etc.

shown that the employment of appellee by Exhibit A (copy of order): “General Fund. appellant's common council was an attempt $429.59. No. 5,795. Office of City Clerk, De- on the part of said council to proviue for the catur, Ind., May 18, 1904. To the Treasurer performance of the regular duties of a city of the City of Decatur: Pay to Geo. E. civil engineer, contrary to the general proviMcKean, or order, four hundred and twenty- sions of section 3476, Burns' Ann. St. 1901, nine and 59/100 dollars. Date of allowance, which constitutes a part of the governing 517–1904. Services as city civil engineer, law under which appellant city was organized

Mayor. Attest: D. M. Hower, and is operating. This section provides that City Clerk.”

"the officers of such city shall consist of a Appellant demurred separately and sever- mayor,

civil engineer,” etc. The ally to the first, second, and third paragraphs facts, however, as alleged in the first paraof the complaint on the ground that neither graph of the complaint, do not even tend to of said paragraphs states facts sufficient to support counsel's first contention. If, as constitute a cause of action against the de- counsel seemingly insists, appellant, at the fendant. The record recites that this demur- time it employed appellee to serve as a rer was "overruled as to each paragraph of special engineer, had a regularly appointed the complaint, to which ruling of the court and acting civil engineer appointed under the defendant excepted." Appellant filed an this statute, then such facts, if available, answer in six paragraphs, to which no de- should have been set up by way of answer, murrer appears to have been filed, and no for it is evident that no facts tending to question is raised in respect thereto. Upon sustain counsel's contention are exhibited by the issues joined there was a trial by the the paragraph in question. In fact, it may court and a general finding in favor of ap- be said that there is an entire absence in pellee to the effect that the general allega- the complaint of anything going to show tions of his complaint were true, and that that the employment of appellee by the comhe was entitled to recover the sum of $429.59. mon council was an attempt upon the part There was a motion for a new trial, assign- of that body to unlawfully interfere with ing, among other reasons therefor, the stat- the duties conferred by law on appellant's utory grounds. This motion, over appellant's civil engineer. exceptions, was denied, and a judgment in Appellant's counsel advances as a second favor of appellee was rendered upon the find- proposition that the first paragraph is also ing of the court.

bad because by the facts therein averred it The errors discussed and relied upon for affirmatively appears that the contractor a reversal of the cause relate to the overrul- agreement under which appellee was eming of the demurrer to each paragraph of the ployed by the city was not in writing, and complaint and to the insufficiency of the was not to be performed within one year evidence to support the finding of the trial from the making thereof, and therefore it court. Counsel for appellee, however, con- is argued that the case falls within the fifth tend that the alleged errors arising out of subdivision of section 6629, Burns' Ann. St. the ruling on the demurrer to each para- 1901; the same being a part of our statute graph of the complaint present no question of frauds. But counsel is mistaken in his

contention that the facts alleged show that the contract by which appellee was employed to do the work in controversy was one which, under the agreement of the parties thereto, was not to be performed within one year after the making thereof. On the contrary, it is disclosed that appellee was only employed to serve appellant for one year. This provision of our statute of frauds has no application to contracts which may or may not be performed within one year. Piper, Ex'r, v. Fosher, 121 Ind. 407, 23 N. E. 209; Durham v. Hiatt, 127 Ind. 514, 26 N. E. 401; Hinkle v. Fisher, 104 Ind. 85, 3 N. E. 624. It manifestly follows that neither of the above objections urged by counsel to the first paragraph of the complaint is sustained. It is further insisted, however, that this paragraph is also insufficient because, first, it does not appear from the facts therein alleged that the common council ever ordered, authorized, or ratified the payment to appellee of any per cent.; second, that the council could not enter into a contract so uncertain in regard to the payment of the salary or wages of a public officer by a percentage of the amount of improvements made by the city during the year.

The first and second paragraphs of the complaint, however, do not proceed upon the theory that appellee was appellant's regular civil engineer, whose appointment or election is provided for by the governing statute under which appellant was organized, and whose annual salary is authorized to be fixed by section 3540, Burns' Ann. St. 1901. For aught appearing to the contrary, appellant city at the time may have had no regular civil engineer, and may have employed appellee, not to perform all and singular the duties conferred by law upon such an officer, but only as an employé to serve it in special business matters where the skill of a civil engineer was required. It may be said that, in regard to all contracts which fall within the ordinary corporate powers of a city organized under the laws of this state and in respect to which no statutory requirements or mode of procedure are provided, the city will be bound by its contracts, whether the same relate to the employment of persons, or to transactions of other business matters pertaining to the city's affairs, and in the making of such contracts the procedure of the common council need not be by resolution or ordinance, and in the absence of any statute requiring the same it is not essential to the enforcement thereof that such a contract be in writing. This is a well-settled proposition. City of Logansport v. Dykeman, 116 Ind. 15, 17 N. E. 587, and authorities there cited; Wilt v. Town of Redkey, 29 Ind. App. 199, 64 N. E. 228, and cases there cited; Town of Gosport v. Pritchard, 156 Ind. 400, 59 N. E. 1058; Cullen v. Town of Carthage, 103 Ind. 196, 2 N. E. 571, 53 Am. Rep. 504. In fact, the principle asserted in these cases appears to rule the question in regard to

the employment of appellee, at least so far as it arises on demurrer. Ordinarily the question in regard to his employment by appellant's common council to do the work which he alleges he performed was a matter which, under the law, rested in the sound discretion of said council, an abuse of which would be subject, however, to a judicial review. We conclude that the first and second paragraphs of the complaint are sufficient on demurrer.

As previously stated, the third paragraph is based upon what purports to be a warrant, or order, drawn by appellant upon its treasurer for $129.59, payable to appellee or order. This warrant, under the word "Attest," bears the signature of the city clerk, but does not contain the signature of the mayor, the name of that official being left in blank. Counsel for appellant assails the sufficiency of this paragraph as a cause of action upon the warrant which was filed therewith and made a part thereof, for the reason that the warrant has not been signed by the mayor as required by the statute. In support of the sufficiency of this paragraph counsel for appellee rely upon the holding of this court in City of Connersville v. Connersville Hydraulic Co., 86 Ind. 184. It is true that in that appeal this court held that a city organized under the general laws of this state may be sued upon a warrant drawn upon its treasurer by the proper officers. It was held, and properly so, that such a warrant, or order, is evidence of the city's indebtedness, upon which the holder thereof may maintain an action; but the one involved in that case was signed by the mayor of the city, and was countersigned or attested by the city clerk. Judge Elliott, in passing upon the question relative to the sufficiency of the warrant to constitute a right of action against the city, quoted with approval section 502, 1 Dillon's Municipal Corporations, in which the author says: “County and city orders, signed by the proper officers, are prima facie binding and legal. These officers will be presumed to have done their duty. Such orders make a prima facie cause of action. Impeachment must come from the defendant." To the same effect is the decision of this court in Board of Commissioners, etc., v. Day, 19 Ind. 450. Section 35504, Burns' Ann. St. 1.901, which is a part of the general governing statute relative to cities, provides that: "The clerk shall draw all orders upon the treasurer of such city, which shall be signed by the mayor and countersigned by him; but no order shall he drawn upon the treasurer except upon an allowance made by the common council or when the same is fixed by law or the ordinances of such city." This statute requires the clerk of the city to countersign all warrants drawn by him for the purpose of attesting the authenticity of the mayor's signature. But the signature of the clerk alone to the warrant, in the absence of that

of the mayor, is not sufficient to make it a the committee reported to the council in legal demand against the city or its treasur regard to the compensation which it had er. In addition to other legal requirements agreed to pay appellee for his services as to render such warrants valid and binding special engineer. There is, however, evidence upon the city, they must be signed by the to show that the committee made a verbal officers prescribed by the statute, and in the report to the council as to the compensa. absence of the signatures of these officials tion which they had agreed to pay appellee it becomes the duty of the city treasurer for his services, but no record appears to to refuse the payment thereof. 1 Abbott's have been made of this report. Appellee, Municipal Corporations, $ $ 226, 231. For the without taking any oath of office or giving reason that the warrant upon which the any bond, entered into the employment of third paragraph is founded was not signed the city and served it for a period of one by the mayor of the city, as required by year, performing all the work which he was the statute, it must be held invalid, and directed to do by the city. He was allowed constitutes no legal demand or obligation by the council and paid each month $10, and against appellant, and the trial court, there at the end of the year for which he was fore, erred in overruling the demurrer to employed his services were terminated by this paragraph of the complaint.

the common council. The improvements While there is some conflict in the eyi made by the city, for which he did the dence, nevertheless it may be said to es surveying, etc., were all completed accordtablish the following facts : Appellant city to the plans and specifications which he is incorporated under the general laws of made, and it appears that his work was perthis state and has a population of 4,000 and formed to the full satisfaction of the comover. In March, 1903, its regularly ap mon council. At the time of his employpointed and qualified civil engineer died. In ment he was the regularly elected and qualithe month of April following, the city being fied surveyor of Adams county, in which apwithout a civil engineer, the common council, pellant city is situated. During the year having in contemplation the making of many or his employment the city made improvepublic improvements during the ensuing ments to the value and amount of $57,959.53, year, deemed it necessary to employ a com upon which he performed the work of a civil petent civil engineer to make the grades, ley engineer. After deducting $15,000 from the els, etc., for such improvements. According amount, there remained $12,959.53, upon ly the council, at a regular session held about which, under the contract of his employApril 22, 1903, on motion ordered that the ment, he was entitled to 1 per cent.; such mayor of the city appoint a committee of three percentage being $429.59, the amount for of the members of the common council to which the judgment was rendered. Upon employ a special engineer to make the grades the termination of his services he presented and levels for the general improvements to to the common council of the city a claim be made by the city. This committee was for said amount, which claim, after being appointed by the mayor, and at a subse duly considered by that body, was allowed, quent meeting of the council it reported to and the clerk drew and signed a warrant that body that it had secured from George thereon upon the city treasurer. This warE. McKean (appellee herein), a resident of rant, as the evidence shows, the mayor rethe said city of Decatur, “a promise to make fused to sign, and the treasurer accordingsurveys, plans, and specifications for all city ly refused to pay it. This warrant was inimprovements to be made by said common troduced in evidence by appellee, and is council, and to do all said work under special the same warrant upon which the third employment by the common council.” The paragraph of the complaint is founded. committee then recommended in its report We find sufficient evidence to support the that the council employ appellee to do and finding either on the first or second paraperform all the engineering for the public graphs of the complaint. The finding of the works then under construction, and there court, as previously stated, is general, and after to be constructed, under said council, there is nothing in the record proper to show and further requested that said committee that the judgment does not rest upon the be instructed to enter into a contract and third paragraph of the complaint, which employ appellee. This report appears to we hold insufficient on demurrer. We canhave been received and approved by the not resort to conflicting evidence, and explore council. The committee accordingly employ the same in an attempt to discover whether ed appellee, and the compensation to be paid the ruling of the court on the demurrer to to him for his services, as finally fixed and the paragraph in question was harmless to agreed upon between him and the said com appellant. This rule is firmly settled by a mittee, was to be $40 per month, provided long line of decisions of this court. Penna, the improvements made by the city did not Co. v. Pcor, 103 Ind. 553, 3 N. E. 253, and exceed in amount during the year $15,000. cases there cited; Ryan v. Hurley, 119 Ind. On all amounts of improvements made in 115, 21 N. E. 463, and cases there cited; excess of $15,000 he was to receive, in addi Baltimore, etc., Ry. Co. v. Jones, 158 Ind. tion to the $10 per month, 1 per cent. There 87, 62 N. E. 994, and cases there cited; Lake is a conflict in the evidence as to whether Erie, etc., R. Co. v. McFall, 165 Ind. 574, 76

N. E. 400, and cases there cited; Elliott's two years previous to the filing of the petiApp. Procedure, 8 638.

tion, and the other, Dr. Burrows, after tesFor the error of the court in overruling tifying that he was a freeholder and housethe demurrer to the third paragraph of the holder residing in Decatur county, Ind., tescomplaint, the judgment is reversed, with tified, so far as relates to the residence of instructions to the lower court to sustain the appellant, as follows: "Q. Doctor, if you demurrer to this paragraph, and for further are acquainted with Mrs. Nettie West, yo'l proceedings not inconsistent with this opin- may so state to the court. A. Yes, sir; I ion.

am. Q. If she has been a resident of the

state of Indiana for the two years last past (38 Ind. App. 659)

continuously, you may so state to the court. WEST v. WEST. (No. 5,833.)

A. Yes, sir; she has. Q. You may state

to the court whether she has been a resident (Appellate Court of Indiana, Division No. 2. Oct. 24, 1906.)

of Decatur county during all of that time. DIVORCE-ACTION-RESIDENCE OF PLAINTIFF

A. Yes, sir. Q. Do you know where she has EVIDENCE.

resided for the last two years, doctor? A. Burns' Ann. St. 1901, § 1043, provides that Well, for the last two years she has been the bona fide residence within the state of the petitioner for divorce for at least two years

in Westport and here. Q. Greensburg? A. previous to the filing of the petition must be

Yes, sir. Q. These places, Westport and shown by two competent witnesses. One of Greensburg, are in this county, doctor ? A.' two witnesses in a suit for divorce, who testi

Yes, sir. Q. And during all of that time, fied a month after the filing of the petition, stated that the petitioner had been continuously

for the last two years, she has been a resia resident of the state for the two years last

dent of this county-Decatur county-and past. Held not to show that the petitioner had this state? A. During all of that time? Q. resided in the state continuously for the last Yes, sir. A. Yes, sir." Cross-examination : two years previous to the filing of the petition, essential to confer jurisdiction on the court.

"Q. What has been her acquaintance with

you, doctor-for how long? A. Well, I have Appeal from Circuit Court, Decatur Coun

known her for the past six or eight years, ty; Marshall Hacker, Judge.

I think. Q. You say you have known her for Action by Nettie West against Charles

the past six or eight years? A. Yes, sir. West. From a judgment for defendant,

Q. Did you visit her here since she has been plaintiff appeals. Affirmed.

in Greensburg? A. Yes, sir; I have. I Wickens & Osborn, for appellant. John

have seen her since she has been here in W. Craig, for appellee.

Greensburg, and she lived a number of years

in the same town I lived in-in Westport. COMSTOCK, P. J. Suit for divorce. Ap- She lived there in the same town a number pellee, defendant below, did not appear, and of years.” He gave this testimony on Februwas defaulted. The prosecuting attorney ap- ary 3, 1905. The petition had then been filed peared on behalf of the state and answered a month before said date. This testimony the complaint by general denial. The trial does not show that appellant had resided in resulted in judgment in behalf of appellee. the state continuously for the last two years The overruling of appellant's motion for a previous to the filing of the petition, and new trial is the only error assigned, and the it is not, therefore, sufficiente only cause set out in the motion for a The judgment is affirmed new trial. The cause is that the decision of the court is not sustained by sufficient evidence.

(38 Ind. App. 696) It is insisted by the prosecuting attorney

STASER V. GAAR, SCOTT & CO. et al. that the residence of appellant is not shown

(No. 5,817.)1 as required by the statute. Section 1043, (Appellate Court of Indiana, Division No. 2.

Oct. 26, 1906.)
Burns' Ann. St. 1901 (section 1031, Horner's
Rev. St. 1901), requires that the bona fide

1. JUDICIAL SALES-DEFINITION-PARTITION. residence within the state of the petitioner

A sale in partition made under process of

the court by an officer appointed and commisfor at least two years previous to the filing sioned to sell, which becomes absolute only on of the petition shall be proven to the satis- confirmation by the court, is a judicial sale. faction of the court trying the same by at [Ed. Note.- For cases in point, see vol. 31, least two witnesses who are resident free

Cent. Dig. Judicial Sales, 88 1-4.) holders and householders of the state. Said

2. DOWER PARTITION SALE - RIGHTS OF

WIFE. proof is prerequisite to the jurisdiction of

Burns' Ann. St. 1901, $ 2652, provides that the court. Cummins v. Cummins, 30 Ind. a surviving widow shall be entitled to one-third App. 673, 66 N. E. 915; Driver v. Driver, of the real estate of which her husband was 153 Ind. 88, 54 N. E. 389; Roshniakorski v.

seised during marriage and in the conveyance Roshniakorski (Ind. App.) 72 N. E. 485.

of which she may not have joined. Burns' Ann.

St. 1901, § 2669, provides that in case of juThe evidence is in the record. It appeared dicial sales of realty in which any married that two witnesses, possessing the prescrib- woman has an inchoate interest by virtue of ed qualifications, testified to appellant's resi

her marriage, and such interest was not sold

by the judgment, it shall vest in the wife as such dence. The evidence of the one showed that

inchoate interest becomes absolute on the death the appellant had resided in the state for the of the husband, and that when so vested the wife

Transferred to Supreme Court, 79 N. E. 404. Rehearing denied.

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