Garrigus v. Board, etc.

which are of the highest importance to the public welfare. One of the most obvious of these is the duty to discover and collect all moneys and property belonging to the county which are wrongfully withheld from it, or which have been lost, or misapplied, through mistake, negligence, or fraud. Duncan v. Board, etc., 101 Ind. 403; Board, etc., v. Mitchell, 131 Ind. 370; Board, etc., v. Gardner, 155 Ind. 165.

The objection that the work to be performed by Fleener and Hunter was a part of the official duty of the board, and that the board could not delegate the performance of this duty to others, is earnestly pressed upon our attention.

The complaint averred that "the existence of these claims, and each item thereof, could be ascertained only by long, laborious, and careful search of experts." Such a search was not that of "auditing accounts of officers", which the statute imposed upon the board. It was plainly a duty the board could not perform, but one which, from its nature, must be committed to others. The employment of the expert accountants for the purposes named in the agreement did not involve any abandonment or delegation of the official powers and duties of the board. The proceedings of the accountants were at all times subject to the supervision and control of the board, and the persons so employed were mere agents and servants of the county.

Again, counsel for appellee contend that the complaint is bad because it appears from its allegations that the sum collected from the State by Fleener and Hunter was in excess of the amount justly due. As the county accepted, and yet retains, the amount so collected, it cannot evade its liability to its agents on the pretext that they recovered for it more than it was entitled to receive. Besides, this objection, if valid, goes only to a part of the appellant's claim, and, if allowed, would not render the complaint bad.

The last point made by counsel for appellee is that the terms of the agreement, by which Fleener and Hunter were to receive fifty per cent. of the amounts recovered, were un

Colliery Engineer Co. v. American Car, etc., Co.

fair and unconscionable. If the work undertaken by the experts was as difficult and tedious as the complaint alleges and as the demurrer admits, it cannot be said that the contingent compensation provided for by the contract was unfair, or out of proportion to the nature and amount of the services to be rendered. The total amount recovered was not great, and none of the reasons upon which the contracts referred to in the cases cited by appellee were held invalid applies to the agreement before us. In our opinion, the complaint was sufficient.

Judgment reversed, with instructions to overrule the demurrer to the complaint, and for further proceedings in conformity herewith.

THE COLLIERY ENGINEER COMPANY V. THE AMERICAN CAR AND FOUNDRY COMPANY ET AL.

[No. 19,434. Filed June 5, 1901.]

APPEAL AND ERROR.- Action Begun Before Justice of the Peace.The fact that the constitutionality of a statute is involved does not render an action begun before a justice of the peace in which the amount in controversy does not exceed $50 appealable to the Supreme or Appellate Court under the exception in §644 Burns 1894 relative to appeals, as such exception applies to ordinances of municipal corporations.

From Clark Circuit Court; J. K. Marsh, Judge.

Appeal from judgment in action originating before a justice of the peace involving the constitutionality of a statute where the amount in controversy was $1. Appeal dismissed.

J. W. Fortune, A. G. Smith and C. A. Korbly, for appellant.

M. Z. Stannard, for appellees.

MONKS, C. J.-This is an action for the recovery of money only, and originated before a justice of the peace. The amount in controversy, exclusive of interest and cost,

Colliery Engineer Co. v. American Car, etc., Co.

is $1. It is conceded by the parties that the right of recovery depends upon the constitutionality of a statute. The appeal to this court was perfected August 3, 1900. The right of appeal in this State is statutory. Elliott's App. Proc., §77; Ewbank's Manual, §§81, 88. Our code of civil procedure provides that "Appeals may be taken from the circuit courts and superior courts to the Supreme Court, by either party, from all final judgments, except in actions originating before a justice of the peace or mayor of a city, where the amount in controversy, exclusive of interest and costs, does not exceed $50: Provided, however, That this exception shall not apply to prohibit an appeal in cases originating before a justice of the peace or mayor of a city, involving the validity of an ordinance passed by an incorporated town or city." §644 Burns 1894, §632 R. S. 1881 and Horner

1897.

By the second clause of §1336 Burns 1894, §6562a Horner 1897, the Appellate Court was given jurisdiction of all appeals from judgments rendered in cases which originated before a justice of the peace, in which the amount in controversy, exclusive of interest and cost, exceeds $50. Said section also provides that the Appellate Court shall not have jurisdiction of any case where the constitutionality of a statute, federal or State, or the validity of an ordinance of a municipal corporation, is in question, and such question is duly presented. It is clear that the jurisdiction of this appeal was not in the Appellate Court.

As the action is for the recovery of money only, and the amount in controversy, exclusive of interest and cost, does not exceed $50, and the validity of an ordinance of an incorporated town and city is not involved, the same was not appealable under the laws of the State. §644 (632) supra; Winfield v. Wise, 73 Ind. 71, 73; Bosworth v. Wayne Pike Co., 101 Ind. 175; Louisville, etc., R. Co. v. Coyle, 85 Ind. 516; Cincinnati, etc., R. Co. v. McDade, 111 Ind. 23; Town of North Manchester v. Oustal, 132 Ind. 8; Cow

State v. Kirk.

ley v. Town of Rushville, 60 Ind. 327; Quigley v. City of Aurora, 50 Ind. 28, and cases cited; Clinton Tp. v. De Haven, 22 Ind. App. 280; City of Greensburg v. Cleveland, etc., R. Co., 23 Ind. App. 141; Griffee v. Town of Summitville, 10 Ind. App. 332; Lake Erie, etc., R. Co. v. Yard, 8 Ind. App. 199; Duckworth v. Mosier, 4 Ind. App. 267; Ewbank's Manual, $89.

The fact that the constitutionality of a statute may be involved is immaterial, for the reason that no provision was made in the proviso of said §644 (632), supra, for the appeal of cases originating before a justice of the peace or mayor of a city, involving the constitutionality of a statute, where the amount in controversy exclusive of interest and cost did not exceed $50, as there is for cases involving the validity of ordinances of municipal corporations.

As the statute makes no provision for an appeal in a case such as this, this court has no jurisdiction of the appeal.

Appeal dismissed.

THE STATE v. KIRK.

[No. 19,500. Filed June 7, 1901.]

CRIMINAL LAW.-Bill of Exceptions.-Time of Filing.-Appeal and Error.-When time is given beyond the term within which to file bill of exceptions in a criminal case, it must be granted before or at the time of the rendition of the judgment.

From Clay Circuit Court; S. M. McGregor, Judge.

Prosecution of Albert E. Kirk for forgery. From a judgment of acquittal the State appeals. Affirmed.

J. M. Rowley, E. S. Holliday, Rowland Evans and W. L. Taylor, Attorney-General, for State.

G. A. Knight and A. W. Knight, for appellee.

MONKS, C. J.-Appellee was charged by affidavit and information with the crime of forgery. At the conclusion of

VOL. 157-8

Currier v. State.

the evidence, the jury, by direction of the court, returned a verdict of not guilty. On October 18, 1899, a judgment of acquittal was rendered on said verdict. On November 1, 1899, several days after the rendition of the judgment on the verdict, the court "granted sixty days' time in which to file bills of exception." Within the sixty days, and in vacation, a bill of exceptions was presented to and signed by the trial judge, and on the same day filed in the clerk's office.

It is settled law in this State under §1916 Burns 1894, $1847 R. S. 1881 and Horner 1897, that in criminal cases if time is given beyond the term within which to file bills of exceptions, it must be granted before or at the rendition of the judgment. Ewbank's Manual, §33, p. 45; Hotsenpiller v. State, 144 Ind. 9; Bruce v. State, 141 Ind. 464; Guenther v. State, 141 Ind. 593, 594, 595; Barnaby v. State, 106 Ind. 539; Hunter v. State, 101 Ind. 406. It follows, therefore, that the bill of exceptions filed in vacation is not in the record, and can not be considered.

As appellant relies upon the matters set forth in said. bill of exceptions to sustain the assignment of errors, it is clear that there is nothing in the record to support the same. The appeal is not sustained.

CURRIER V. THE STATE.

[No. 19,581. Filed June 18, 1901.]

CRIMINAL LAW.-Larceny.—In a prosecution for larceny the evidence showed that defendant contracted with a plumbing company to furnish and lay certain steam pipes upon the express condition that defendant should first secure the company by the execution of his promissory notes for the contract price, with surety. When the pipe arrived at the depot the company authorized defendant to haul it on his wagon to his farm and deposit it there for their use. Upon the refusal of defendant to execute the notes the company demanded the pipe, a part of which was hidden by defendant, and which he refused to surrender unless the company would pay certain expenses. Held, that the concealment of the property by defendant, and his refusal to return it except upon the payment of a fictitious and fraudulent claim, constituted a felonious taking and appropriation, and was larceny, under the statute. pp. 115-119.