The Indianapolis, Peru and Chicago R. W. Co. v. Beam et al.

against him, in this action (a point which we need not and do not decide), yet, as he failed to show that he had any defence, of which he could lawfully avail himself, to the appellee's cause of action, we are bound to conclude that the court did not err in overruling the appellant's motion to set aside said default, or that the error was harmless, if any was committed. This court has often decided that it will not reverse a judgment for a harmless error. Graeter v. Williams, £5 Ind. 461; The United States Express Co. v. Keefer, 59 Ind. 263; and Zorger v. The City of Greensburgh, 60 Ind. 1.

The judgment is affirmed, at the appellant's costs.

THE INDIANAPOLIS, PERU AND CHICAGO R. W. Co. v.
BEAM ET AL.

JUSTICE OF THE PEACE.-Appeal to Circuit Court.-Appeal Bond Executed Without Surety.-Mandate.-A party, against whom a judgment had been rendered by a justice of the peace, tendered to the justice a bond executed by him without any surety, and demanded an appeal to the circuit

court.

Heid, in an action by such judgment defendant, against such justice and the judgment plaintiff, for a writ of mandate to compel the granting of such appeal, that such bond was insufficient.

From the Marshall Circuit Court.

D. Moss, for appellant.

W. B. Hess, for appellees.

NIBLACK, J.-The Indianapolis, Peru and Chicago Railway Company filed its complaint in the court below, verified by the affidavit of its agent, showing, amongst other things not necessary to be stated here, that one Richard Williams recovered a judgment against said railway com

The Indianapolis, Peru and Chicago R. W. Co. v. Beam et al.

pany, for the sum of fifty dollars and costs, before Jacob Beam, a justice of the peace of Walnut township, in the county of Marshall; that, within thirty days after the rendition of such judgment, said railway company tendered to the said justice a good and sufficient appeal bond, in the penal sum of one hundred and twenty-five dollars, payableto the said Richard Williams, 'and executed by the said railway company by its proper officer and agent, and demanded an appeal from said judgment to the Marshall Circuit Court; that the said justice failed and refused to approve said appeal bond, and had also failed and refused to transmit to said circuit court a transcript of the proceedings before said justice, or any other papers in said cause; that said railway company was solvent, and was the owner of several thousand dollars worth of property in said county of Marshall, subject to execution.

Wherefore the said railway company prayed, that a mandate might issue to the said justice, requiring him to approve said appeal bond, and to transmit a transcript of the proceedings, together with the other papers in the cause, to the said circuit court.

Beam and Williams, both of whom were made defendants, demurred to the complaint, and the court sustained their demurrer, and refused to issue a mandate against said justice, as prayed for by the complaint.

The only question presented for our decision is, was the justice justified in refusing to approve the appeal bond tendered to him, signed as it was, only by the party demanding the appeal, granting that such party was amply able to respond to any damages that might be recovered upon such bond?

Section 65 of the act relating to justices' courts, which treats of appeals from such courts, enacts, that "The appellant shall, except in cases where the same is dispensed with by law, file with the justice a bond with security, to

The Board of Commissioners of Harrison County r. Leslie.

be approved by the justice, payable to the appellee, in a sum sufficient to secure the claim of the appellee, and interest and costs, conditioned that he will prosecute his appeal to effect, and pay the judgment that may be rendered against him in the circuit court." 2 R. S.

1876, p. 622.

* *

The fair construction of this section of the statute evidently is, that, to entitle a party to an appeal from the judgment of a justice, he must file with such justice a bond, with the name of some other person besides, or other than, his own, signed to it as surety in such bond.

The case of Murphy v. Steele, 51 Ind. 81, cited by counsel for the appellant, does not conflict with this construction. On the contrary, it appears to us, by implication, to fully sustain it. In that case, the appeal from the justice had been dismissed in the court below, because the appeal bond had no name signed to it as surety, and it was plainly intimated by this court, that such appeal would have been properly dismissed, if the party appealing had not, in time, tendered a new bond, with sufficient surety.

With this construction of the section of the statute above quoted, we are necessarily required to hold, that the court below did not err in refusing a mandate against the appellee Beam upon the facts as set up in the appellant's complaint.

The judgment is affirmed, at the costs of the appellant.

THE BOARD OF COMMISSIONERS OF HARRISON COUNTY v. Leslie. COUNTY.-County Auditor.-Deputy or Employee.--Posting Notices of Sale.— School Fund Mortgage.-Fees and Salaries.-Principal and Agent.-In giving notice of a sale of real estate embraced in a school fund mortgage,

The Board of Commissioners of Harrison County v. Leslie.

as required by section 95 of the school law, 1 R. S. 1876, p. 801, while the fee and salary act of March 12th, 1875, was in force, it was the personal duty of the county auditor to post notices of such sale without other compensation than was provided for him in the latter act for managing the school fund of his county; and one who, under employment by the county auditor, performed such duty, could look only to the county auditor personally, and not to the county, for compensation.

From the Harrison Circuit Court.

W. A. Porter, for appellant.

L. Jordan and H. Jordan, for appellee.

Howk, C. J.—In this case, the appellee presented to and filed with the appellant, at its June term, 1876, an open account for allowance and payment, of which account the following is a copy:

"Board of Commissioners of Harrison county, Indiana, "To Charles E. Leslie, Dr.

"1876, April. For posting notices of sale of advertised lands, forfeited to the school fund, of the following persons, to wit:

[We give only the initials of the persons named.]

The appellant rejected and refused to allow said account; and from this decision the appellee, Leslie, appealed to the circuit court.

The cause was tried by the court without a jury, and a finding was made for the appellee in the sum of ten dollars and fifty cents.

The appellant's motion for a new trial was overruled, and its exception was saved to this decision.

The court rendered judgment on its finding, from which judgment this appeal is now prosecuted.

The Board of Commissioners of Harrison County v. Leslie.

The appellant has assigned, in this court, the overruling of its motion for a new trial by the court below, as error. The causes assigned for such new trial were, that the finding of the court was not sustained by sufficient evidence, and that it was contrary to law.

A bill of exceptions, containing the evidence on the trial, is properly in the record.

The testimony of the appellee, as a witness in his own behalf, was "all the evidence given in the cause." The appellee's testimony was as follows:

"I was employed by Cortez M. Miller, auditor of the county, to put up notices in different parts of the county, of the sales of lands forfeited to the school fund, as per my bill of particulars filed herein. I furnished my own horse, and was engaged three and one-half days in posting up said notices, and the services of myself and horse were worth three dollars per day."

It will be seen that the only question for decision, in this case, is this: Is the appellant liable to the appellee for the value of the services rendered by him, at the instance and under the employment of the auditor of Harrison county? We are clearly of the opinion that this question must be answered in the negative. The statute, known as the common school law of March 6th, 1865, makes it the duty of the county auditor to manage the school fund of his county, to make loans thereof on mortgage security, and, if default is made in the payment of either interest or principal, to collect the same by suit or by sale of the mortgaged premises. 1 R. S. 1876, p. 778, et seq. If the auditor shall elect to collect the loan and interest by sale, it is provided in section 95 of the common school law as follows:

"Before sale of mortgaged premises, the auditor shall advertise the same in some newspaper printed in the county where the land lies, if any there be, otherwise in a paper