The Indianapolis and Cincinnati R. R. Co. v. The City of Lawrenceburg.

cupied by her road bed, but that said part of said street, from the time of the construction of her said road until the time of the filling of the same in the manner in the complaint mentioned, was in as good a condition for the use of the public and for passage and travel as when her said railroad was built along the line of the same.

Demurrers were sustained to the second and third paragraphs of the answer, and exceptions taken. The general denial being withdrawn, there was final judgment for the plaintiff.

The rulings of the court below on the several demurrers present the only questions for our consideration.

It seems to us that the several rulings were correct. There can be no doubt that as the railroad company accepted the ordinance of the city, and built her railroad through the city in virtue thereof, she was bound to comply with the terms and conditions specified in the ordinance. We have seen that the ordinance requires that "where the grade of said road shall be higher than such street, alley or public ground,the said company shall fill up on each side of their said road, to form a convenient passage over the same." It is no answer to this provision of the ordinance to say that the street on which the railroad was built was unimproved, and had neither sidewalks nor gutters, and was never graded or paved; nor to say that after the building of the railroad, and before the filling up of the street by the city, the street was in as good a condition for passage or travel as before the building of the railroad. The ordinance requires that where the grade of the railroad is higher than the street, &c., the company shall fill up on each side, &c., and this is to be done without reference to the question whether the street, after the railroad is built, is as passable as it was before, or not.

The railroad company was bound by the ordinance to fill up the street, but having refused to do so, and it having been done by the city, the latter can maintain the action to recover the expense thereof.

Morback and Others v. The State, ex rel. Jackson Tp., Ripley County.

The judgment below is affirmed, with costs and two per cent. damages.

D. S. Major and O. B. Liddell, for appellant.

F. Schwartz, for appellee.

MORBACK and Others v. THE STATE, on the Relation of JACKSON TOWNSHIP, RIPLEY COUNTY.

PLEADING.-Township Trustee.—Suit on Official Bond.—In an action on the official bond of a township trustee, on the relation of the township, to recover a certain amount of school money belonging to the township, which said trustee had refused to pay over to his successor in office, the complaint failed to allege that said trustee, as such, had received any money which he had not expended according to law, and which he had in his hands when he went out of office.

Held, that for want of such an averment, the complaint was bad on demurrer.

APPEAL from the Ripley Circuit Court.

BUSKIRK, J.-The appellee commenced an action in the court below, against the appellants, on the official bond of Morback, as trustee of Jackson township, in Ripley county, to recover a certain sum of school money which it is alleged belonged to the said township, and which the said trustee had refused on proper demand to pay over to his successor in office. The other appellants are the sureties of the said Morback.

The complaint alleges that Morback was duly elected trustee of said township, and gave bond, which is filed with the complaint, took the oath of office, and entered upon the discharge of the duties of such office. The complaint then assigns the following breach of the condition of the said bond: "Said plaintiff or relator avers that during the term aforesaid, while the said Morback was the acting trustee of said Jackson township, as aforesaid, the sum of one thousand five

Morback and Others v. The State, ex rel. Jackson Tp., Ripley County.

hundred and sixty-four dollars and twenty-six cents in cash, of the school money belonging to the said township, as follows, to wit: seven hundred and ninety-seven dollars and fifty-three cents of the school fund, and seven hundred and sixty-six dollars and seventy-three cents of special school funds. All of which money as aforesaid the said Nicholas Morback wholly failed, neglected, and refused to pay over to his successor in said office, John W. Newman, and still refuses, although often requested so to do by the said Newman; wherefore," &c. i

The appellant demurred to the complaint. The demurrer was overruled, and an exception was taken to such ruling. The appellant filed an answer in one paragraph, to which the appellee demurred. The demurrer was sustained, but no exception was taken to the ruling of the court. The appellant refused to answer further. There was a trial by the court, by agreement of the parties, and a finding and judgment for appellee.

The overruling of the demurrer to the complaint is assigned for error, and this is the only question submitted for our decision. We think it is quite clear that the court erred in overruling the demurrer to the complaint. This was an action on the official bond of a township trustee. Neither the trustee nor his sureties would be liable, unless it was alleged and proved that money belonging to the township had come into the hands of the trustee for which he failed properly to account. There is no allegation in the complaint that any money ever came into the hands of the appellant Morback, as such trustee. It may be a mistake in the draftsman of the complaint, or it may have occurred in copying the complaint into the transcript. But however it occurred, there is no such allegation. The appellee has not favored us with a brief, or asked to have the record corrected. We have to decide the case upon the record before us. It is an essential allegation, and its omission is fatal.

Besides, we do not think the assignment of the breach is broad enough, even if it had been shown that he had received the money. The trustee of a township is required by

Skeen and Wife v. Muir and Others.

law to expend the school funds coming into his hands, and to make a settlement with the board of commissioners. There is no averment that he had not lawfully paid out the money. The trustee was not required to pay over the money to his successor, unless it was alleged that he had received money and had not paid the same out according to law. His refusal to pay to his successor constituted no breach of the condition of his bond, unless it was alleged that he had received money, which he had failed to expend according to law, and had the money in his hands when he went out of office. For the error of the court in overruling the demurrer to the complaint, the judgment must be reversed.

Judgment reversed, with costs, and cause remanded, with directions to the court below to award a new trial, and to sustain the demurrer to the complaint, and for further proceedings in accordance with this opinion.

H. W. Harrington and M. K. Rosebrough, for appellants. E. P. Ferris and H. T. Lipperd, for appellee.

SKEEN and Wife v. MUIR and Others.

NEW TRIAL.-As of Right.—Where a new trial is granted as of right under section 601 of the code, at a term after that at which the judgment was rendered, the party against whom the new trial is granted cannot be required to go to trial at the term at which the new trial is granted. SAME.-Notice.-Statute Construed.-The notice contemplated by section 602 of the code is to be given after the application for a new trial has been granted. SAME.-When to be Granted.-In a suit by the purchaser of real estate in possession under the contract of purchase, to compel the vendor to make a deed therefor to the plaintiff and accept from him a mortgage for unpaid purchasemoney, and to set aside as void a deed made by the Auditor of State for said land sold at a sinking fund sale, for having been procured by fraud, and enjoin the execution of a writ of possession issued by said Auditor, judgment was rendered against the defendants.

Skeen and Wife v. Muir and Others.

Held, that the defendants were entitled to a new trial as of right under section 601 of the code.

VENDOR AND PURCHASER.-Pleading.-Possession.-Parties.-In said action the complaint showed that said vendor had given a title bond for said real estate to the plaintiff, and that at the same time it was agreed between the parties that the plaintiff should take possession of the land until the time specified in the bond for the conveyance thereof; that the plaintiff had taken and still retained possession of the land under and by virtue of said agreement; that said vendor had received as part payment a certain sum; and that by fraud he had caused the land to be sold from under the plaintiff, and himself held the equitable title under said sale, though another held the legal title, which was purchased with the money of said vendor and was held in trust for him. Held, that said vendor was a proper party-defendant.

Held, also, that the averment of the complaint in reference to the placing of the plaintiff in possession of the land was not an attempt to vary or add to the title bond by parol, nor was it irrelevant matter or surplusage.

DEMURRER.-By Several Parties.-A joint demurrer by two or more defendants to a complaint should be overruled as to all of them if the complaint be good as to any of them.

APPEAL from the Ripley Circuit Court.

PETTIT, C. J.-This suit was brought to set aside and declare void a deed made by the Auditor of State for lands purchased at a sinking fund sale, as having been procured by fraud, and enjoin the execution of a writ of possession issued by said auditor, the plaintiff being in possession by virtue of a contract of purchase, and to compel the vendor to make a deed and accept a mortgage for unpaid purchasemoney. Defendants were defaulted; trial by the court, and judgment for the plaintiffs. Defendants in vacation gave notice to plaintiffs that they would pay the costs, take a new trial under section 601 of the code, and that the cause would stand for trial at the next term. Costs were paid and a new trial granted over the objection and exception of plaintiffs. The granting a new trial as of right under section 601 is assigned for error.

We think this was not error, and are sustained in our view by Bender v. Sherwood, 21 Ind. 167; Moor v. Seaton, 31 Ind. II. There are other cases in point, but it is unnecessary to cite them.

The court held that the cause stood for trial at the same