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Gauntt r. The State, er rel. Stout, Auditor.

court will not, justify or sustain the judgment below in this case, imposing upon the appellant, as it clearly does, a second jeopardy and punishment for one and the same offence."

In the case now before us, the court erred, we think, in sustaining the State's demurrer to the appellant's plea of former acquittal.

As the judgment must be reversed, and perhaps a new trial had, for the error of the court in sustaining a demurrer to the appellant's plea of former acquittal, it would seem to be unnecessary, if not improper, for us now to consider and decide any of the questions arising under the alleged error of the court, in overruling the motion for a new trial. These questions relate chiefly to supposed errors of law, occurring at the trial, and assigned as such errors in the motion for a new trial. We can hardly suppose, that these errors, if such they be, will again occur on another trial of the cause.

The judgment is reversed, and the cause is remanded, with instructions to overrule the State's demurrer to appellant's plea of former acquittal. The clerk will issue the proper notice for the return of the appellant to the sheriff of Montgomery county.

No. 9229.

81. 137 155

GAUNTT v. THE STATE, EX REL. STOUT, AUDITOR.

81 137

157 475 COUNTY AUDITOR.— Relator.- Capacity to Sue.-County Treasurer.- Defalca

tion.--County Commissioners.-A county auditor may sue a defaulting county treasurer individually, in the name of the State, on his relation as such auditor, for trust funds, and for State, county, school, road, railroad, corporation and other taxes, if so directed by the board of com

missioners of the county. SAME.- Referee.- Trust Fund3.- Tares.- In a suit by the State on the rela

tion of a county auditor, against a county treasurer, for trust funds, and by order of the board of county commissioners for taxes not accounted

Gauntt v. The State, er rel. Stout, Auditor.

for, a report of the referee finding the facts, and his conclusions of law, which finds a gross sum due from such treasurer, a failure to find that the board ordered the suit is not reached by exceptions to the conclusions of law, nor would the defendant, on that account, be entitled to

judgment on the report. REFEREE.— Venire de Novo.-- New Trial.— Exception.-- Practice.- Where a

referee, under order, reports the facts and his conclusions thereon, an insufficiency in the facts found, by omission or uncertainty in the conclusions appearing in the report, is reached, not by motion for a venire de novo, but by motion for a new trial; and the conclusions may be questioned only by exceptions thereto. From the Grant Circuit Court.

1. Van Devanter, J. W. Lacey and W. Van Devanter, for appellant.

R. W. Bailey, A. Diltz and W. March, for appellee.

FRANKLIN, C.-Appellee, as auditor of Grant county, on his relation, in the name of the State, brought this suit against appellant, as former treasurer of said county.

A demurrer was overruled to the complaint, and an answer in eleven paragraphs filed. A demurrer was sustained to the tenth and eleventh paragraphs of the answer, and a reply in five paragraphs filed. A demurrer was sustained to the third, fourth and fifth paragraphs of the reply. The case was tried by agreement before a referee, with instructions to report the facts, with his conclusions thereon, to the court. The referee heard the evidence and reported the facts, with his conclusions in favor of the appellee, to the court. Appellant filed the following motions: For a venire de novo, for a new trial, and for judgment in his favor on the special findings. All of which were overruled, and to all of which rulings proper exceptions were reserved. He then excepted to the conclusion of the referee, and judgment was rendered by the court for appellee.

The following errors have been assigned in this court : 1st. In overruling the demurrer to the complaint.

2d. In overruiing the separate demurrer to each paragraph of the complaint.

Gauntt v. The State, ex rel. Stout, Auditor.

3d. The complaint does not state facts sufficient to constitute a cause of action.

4th. In sustaining the demurrer to the tenth and eleventh paragraphs of the answer.

5th. In overruling the motion for a venire de novo. 6th. In overruling the motion for a new trial.

7th. In overruling the motion for judgment on the special findings.

8th. In overruling exceptions to the conclusions of law.

The first second and third specifications of error, containing an objection to the complaint, may all be considered togethe

The only objection made to the complaint is the want of capacity in the relator to bring the suit.

The 4th section of the code provides : “An executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted.”

The 12th section of the act in relation to county auditors, 1 R. S. 1876, p. 155, reads: “County auditors are authorized to institute suit and prosecute the same to final judgment and execution, in the name of the State, against principals or sureties, or either, upon any note, bond, mortgage, or any obligation, on account of any trust fund, or other fund, whether such note, bond, or mortgage, be in the name of the State or any other person.”

The 5th section of the act providing for the organization of county boards, 1 R. S. 1876, p. 350, reads: “Such commissioners shall be considered a body corporate and politic by the name and style of “The board of commissioners of the county of — and as such, and in such name, may prosecute and defend suits, and have all other duties, rights and powers incident to corporations, not inconsistent with the provisions of this act."

The following provisions are contained in the assessment law, 1 R. S. 1876, p. 117:

“ Sec. 184. If any such county treasurer shall refuse or neg

Gauntt v. The State, ex rel. Stout, Auditor.

lect to pay over all moneys, as provided herein, he and his sureties shall be held liable to pay the full amount which he should have paid over, together with the interest and ten per centum damages.

“ Sec. 185. In any such case, the county auditor, on being instructed to that effect by the auditor of State, or by the board of county commissioners, shall cause suit to be instituted against such county treasurer and his sureties; and no stay of execution or appraisement of property shall be allowed on a judgment rendered or execution issued in such suit.”

It is well settled by the statutes and decisions of this State, that if this suit had been brought upon the bond of appellant as such treasurer, it should have been brought in the name of the State upon the relation of the auditor. Snyder v. The State, ex rel., 21 Ind. 77; Pepper v. The State, ex rel., 22 Ind. 399; Fry v. The State, ex rel., 27 Ind. 318; Taggart v. The State, ex rel., 49 Ind. 42; Neal v. The State, ex rel., 49 Ind. 51; Scotten y. The State, ex rel., 51 Ind. 52; Cabel v. JcCafferty, 53 Ind. 75; Caldwell v. The Board, etc., 80 Ind. 99. In the case of Vanarsdall v. The State, ex rel., 65 Ind. 176, it was held that upon a note executed to the treasurer for the use of the county, and a mortgage executed to the board of commissioners to secure the payment of the note, the suit might be brought by either the board of commissioners, or the auditor, in the name of the State upon his relation.

In the case at bar, the complaint charges that appellant, as such treasurer, collected and did not account for State, county, school, road, railroad, corporation and other taxes, fines, forfeitures, school funds, school fund interest, and redemption money for lands sold for taxes. A bill of particulars of which is given.

The statute of three years' limitation as to the sureties on the bond had run against all the charges, and the six years' as to the principal had run against the greater portion of the charges.

The suit was not brought upon the bond, but against the

Gauntt v. The State, ex rel. Stout, Auditor.

ex-treasurer individually, for the collection of the money. A part of the claim sued on was for trust funds, upon which, by the 12th section, supra, the auditor was expressly authorized to sue in the name of the State upon his relation, and the complaint avers that he was directed by the board of commissioners to sue upon the whole of the claims.

There being a good cause of action in favor of the plaintiff for the trust funds, and the board of commissioners having yielded any right they may have had to sue for any part of the claims, by directing the auditor to bring the suit, we think the suit was properly brought in the name of the State on the relation of the auditor.

In the case of Snyder v. The State, ex rel., supra, it was held: “The general system of checks and balances contemplated by the revenue laws, and intended to enable the auditor to properly charge the treasurer with what funds he receives, also strongly favors the construction, that suits upon an ex-treasurer's bond should be brought upon the relation of the auditor, and not of the incoming treasurer." The same reason would equally apply where suit is brought individually against the ex-treasurer for the money, without suing him upon his official bond.

This complaint states sufficient facts, and there was no error in overruling the demurrer to it.

The 4th specification of errors: “The sustaining of the demurrer to the tenth and eleventh paragraphs of the answer,” has not been presented or discussed by appellant in his brief, and is therefore waived.

The 5th error complained of is the overruling of the motion for a venire de novo.

This motion was based upon the insufficiency of the finding of the facts, and the uncertainty of the conclusion, as reported by the referee.

The 350th section of the code, 2 R. S. 1876, p. 178, provides, that the referees, if required, “must state the facts found and the conclusions of law separately, and their deci

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