Opinion
No. 15,601.
Filed January 26, 1938.
From Dearborn Circuit Court; William D. Ricketts, Judge.
Action by Charles W. Fitch against the City of Lawrenceburg for salary. From a judgment for defendant, plaintiff appealed. Reversed. By the court in banc.
Charles A. Lowe, Lemen Cooper and Arthur D. Cutter, for appellant.
Leyman N. Hayes and Estal G. Bielby, for appellee.
Appellant filed his complaint herein against the City of Lawrenceburg, Indiana, to collect salary alleged to be due him, totaling $600.00, under the Acts of 1931, ch. 161, p. 404. To this complaint appellee answered in general denial. Trial was had and the court found for appellee and entered judgment that appellant take nothing by his complaint and appellee recover costs. Appellant's motion for new trial containing the grounds that the decision of the court was not sustained by sufficient evidence and was contrary to law was overruled and this appeal followed, the error assigned being the overruling of the motion for new trial.
All the evidence herein was stipulated with leave retained to introduce further evidence but none was introduced upon trial and the pertinent facts are as follows: Appellant was duly elected as County Treasurer of Dearborn County, Indiana, and thereafter qualified for such office and entered upon the duties thereof on the first day of January, 1931, and ever since has been and still is the duly elected, qualified and acting county treasurer thereof. That the city of Lawrenceburg is a municipal corporation of the fifth class duly organized and existing under and by virtue of the laws of the State of Indiana. That appellant, by virtue of his said office, and pursuant to the duties thereof, received the tax duplicates from Bruce McLeaster as County Auditor of said county, and which said duplicate when so received by said Treasurer showed the amount of city taxes due the said city from each individual taxpayer in said city, and which said tax duplicates had been so prepared by McLeaster as county auditor during the year 1930 for the collection of tax payable in 1931; that thereafter during said year this appellant collected said taxes for said city as shown by said tax duplicates, and deposited said tax collections with other monies in public depositories as by law required; that he performed the same services during the years 1931, 1932, 1933 and 1934 to date hereof; that on November 23, 1933, he presented and filed with the common council of the city of Lawrenceburg his verified claim for salary, wherein he claimed from said city the sum of $600.00 as and for salary for the collection of said city taxes as treasurer of said county for the year 1931 and 1932; that thereafter said city council wholly rejected said claim and refused and still refuses to pay any part thereof; that said city has paid nothing whatever to appellant by reason of the acts and services performed by him as such county treasurer since the appellant herein became such.
The same question presented here is presented in the case of Bruce McLeaster v. Lawrenceburg (1938), ante 572, 12 N.E.2d 389, and on authority of that case the judgment herein is reversed with instructions to grant appellant's motion for a new trial.
Bridwell, J., Wood, J., and Dudine, P.J., concur in result.