Harlen v. Watson et al.

have been given in evidence at the trial under the general denial, the error in sustaining the demurrer to the cross complaint is harmless. We think the appellees are mistaken in supposing that all the facts alleged in the cross complaint could be given in evidence under the general denial. These facts, as we have held, show a good cause of action against her co-defendants, and, for the purpose of sustaining this cause of action, the facts could not be given in evidence, against her co-defendants, under a general denial to the complaint. Besides, the facts authorize affirmative relief to the appellant, for which she prays, and which could not be given under her general denial to the complaint.

The appellees further claim that the cross complaint shows upon its face, that it was not filed within three years next after the rendition of the judgment which it seeks to review. To avoid this, the appellant avers that she was under the legal disability of coverture at the time, and brought her suit within three years after the disability was removed.

But we do not think that a demurrer, for the insufficiency of the facts averred, could properly be sustained to the cross complaint in this case upon the ground that it shows upon its face, that it was not filed within three years next after the rendition of the judgment.

There are other legal disabilities besides coverture, as being within twenty-one years of age, of unsound mind, imprisoned, or out of the United States. 2 R. S. 1876, p. 313, sec. 797.

And, when a complaint shows upon its face, that the cause of action which it avers has been barred by time, and also shows upon its face, that the plaintiff was under no legal disability to sue during the time, the defect in the complaint may be reached by a demurrer, alleging the insufficiency of the facts to constitute a cause of action; but,

Harlen v. Watson et al.

when the complaint shows upon its face that the cause of action has been barred by time, and alleges nothing as to the legal disability of the plaintiff, or does not show by proper averments, that he was under no legal disability to sue, the defect can not be reached by demurrer, but must be pleaded as an answer, and then the plaintiff may reply the disability, if any exists. Potter v. Smith, 36 Ind. 231.

In short, a complaint in such case, to be subject to a demurrer, must show that the action is not brought in time, and that the plaintiff was not under any legal disability; otherwise the legal disability must be set up by a reply to an answer of the statute of limitations.

The demurrer to the cross complaint in this case therefore, although it showed on its face that the action had not been brought within three years next after the rendition of the judgment sought to be reviewed, but did not show that the plaintiff was under no legal disability to sue during the time, could not properly be sustained, upon the ground that the action was not commenced within the time. required by the statute.

We have thus disposed of all the questions in the case. The judgment is reversed, at the costs of the appellees, and the cause remanded with instructions to overrule the demurrer to the cross complaint filed by the appellant.

ON PETITION FOR A REHEARING.

BIDDLE, J.-The appellant petitions us to pronounce an opinion upon the sufficiency of the complaint in the proceedings sought to be reviewed.

No demurrer was filed to this complaint, and, as the demurrer filed to the cross complaint would not reach the original complaint, it appeared at first view, that no question was reserved against the complaint in the original proceedings; but, as the sufficiency of that complaint could be questioned in this court

Harlen v. Watson et al.

by an assignment of error, we think its insufficiency, although it was not demurred to, might be a ground to review the proceedings. We therefore think it better, as future proceedings in the court below are to be had, to decide the question.

The deeds attacked, as being fraudulent against the creditors of Joshua K. Harlen, are alleged to have been made on the 21st and 24th days of October, 1868. Some of the debts sought to be paid out of the lands so conveyed are alleged to have existed before the deeds were made; and it is averred that certain judgments had been recovered since that date, upon debts due before the deeds were made. On some of the judgments a return of " no goods" had been made. It is necessary in a complaint of this character, that it contain an averment that the debtor had no other property subject to execution at the time the deeds alleged to be fraudulent were made, or some equivalent averment, as that he was insolvent at that time. In the complaint we are considering the averment is, "that the said Joshua K. Harlen, Sr., is wholly insolvent, now is and has been from the rendition of all of said judgments, and up to this time, except the land before mentioned." As these judgments were recovered after the deeds were made, we do not think this averment sufficient. Sherman v. Hogland, 54 Ind. 578; Eagan v. Downing, 55 Ind. 65; Bentley v. Dunkle, 57 Ind. 374.

We must hold the original complaint insufficient.

This ruling does not affect the decision heretofore rendered, but will be considered a part of the original opinion.

The appellees have filed a petition for a rehearing; but as they make no point that was not fully considered in the original opinion, and as we are still satisfied with the views therein expressed, the petition is overruled.

The State, ex rel. The City of Columbus, v. Hauser et al.

THE STATE, EX REL. THE CITY OF COLUMBUS, v. HAUSER ET AL.

CITY TREASURER.-Action on Bond.-Pleading.-Copy.-In an action on the
bond of the treasurer of a city, the bond itself is the foundation of the
action, and may properly be made part of the complaint by copy.
SAME.-Copy of Ordinance.-Copies of ordinances of the common council
of a city, attached to the complaint in an action on the bond of the treas-
urer of such city for a failure to account for moneys of the city received by
him according to such ordinances, form no part of the complaint, and can
not aid its averments.

SAME.-Presumption.-Where, in an action by or against a city, the contrary
does not appear, it is presumed that such city was incorporated under the
general law of this State for the incorporation of cities.

SAME.-Water- Works Bonds.-Statute Construed.-Clause 26 of section 53 of
the act authorizing the incorporation of cities, 1 R. S. 1876, p. 267, gives
to the common councils of cities incorporated under such act no authority
to issue, negotiate and sell bonds of such cities for the purpose of obtain-
ing money to construct water-works.

SAME.-Legalizing Act.-Power of Common Council.-By the act of January
20th, 1871, Acts 1871, p. 8, bonds of a city, theretofore issued, negotiated and
sold by the common council to construct water-works, were legalized and
made valid; and it authorized the further issue and sale of all such bonds
necessary to complete the same.
SAME.-Sale of Bonds.-Duties of Common Council and City Treasurer.—It
is the duty of the common council, under such act, and not of the city
treasurer, to negotiate and sell such bonds; but he is liable on his bond for
moneys received by him from the sale of such bonds, no matter by whom
such sale is made.

SAME.-Principal and Agent.-The duty of the common council to issue,
negotiate and sell such bonds is one which they can not, either by ordi-
nance, resolution or otherwise, delegate to or confer upon the city treas
urer or any other officer or person.

SAME.-Where a sale of such bonds is negotiated by a city treasurer under
an ordinance, resolution or other appointment designating him by name
for that purpose, his acts are simply those of an agent of the common
council.

SAME.-Liability of City Treasurer.—The city treasurer is not liable on his
bond for the mere sale, assignment and delivery by him of such bonds,
pursuant to such agency.
SAME.-Answer.-Contract of Sale of Bonds.-An answer in an action on
the city treasurer's bond for moneys alleged to have been received by
him, as such, from the sale of such bonds, alleged, that, by the terms of
such negotiation, which was approved by the common council, the pro-

The State, ex rel. The City of Columbus, v. Hauser et al.

ceeds of such bonds were to and did remain in the hands of the purchaser, to be used only as needed in constructing the water-works, and that the purchaser had become insolvent while the funds in question yet remained in his hands.

Held, on demurrer, that the answer is sufficient.

SAME.-Minutes of Common Council.-Parol Evidence.-The minutes of the proceedings of a common council are only evidence of such proceedings, and, where no such minutes have been made, such proceedings may be proved by parol evidence.

SAME.-Pleading.-Copy.-Copies of such minutes attached to a complaint form no part thereof.

SAME.-Reply.-A reply in such action, averring that there was no record of the acts of the common council alleged in such answer, is insufficient. SAME.-Estoppel.-Report of City Treasurer.-The fact that the city treasurer, in reporting to the common council the condition of the fund realized from such sale, had therein charged himself with funds which, under the contract made between the common council and the purchaser of the bonds, yet remained in the hands of the purchaser, does not estop him to deny his liability for such funds.

SAME.-Cases Doubted or Explained. The doctrine as to the conclusive character of official reports of certain officers, as laid down in The State v. Grammer, 29 Ind. 530, Wilmer v. The State, 44 Ind. 223, and The State v. Prather, 44 Ind. 287, is not applicable to the reports of the officers of cities incorporated under the general law of this State.

From the Bartholomew Circuit Court.

F. T. Hord and N. T. Carr, for appellant.

R. Hill, S. Stansifer, W. W. Herod and F. Winter, for appellees.

Howk, C. J.-This was an action in the court below, by the relator of the appellant, as plaintiff, against the appellees, as defendants, on the official bond of the appellee Zachariah H. Hauser, as city treasurer of the city of Columbus.

The appellant's complaint, as found in the record, consists of two paragraphs, the first and the fourth.

To these two paragraphs of complaint the appellees Barrett, Jones and Hiner answered in three paragraphs, and the appellees Hauser, Barrett, Jones and Hiner, also answered in three other paragraphs.