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Buscher v. Knapp, Adm'r.

a reply, and the other in admitting a will in evidence, and the prayer of the complaint is that the judgment be reviewed and annulled.

The appellee filed a motion to dismiss this suit, and an affidavit stating that the cause in which the judgment sought to be reviewed was rendered had been appealed to this court. We agree with appellee's counsel that a party can not prosecute an appeal and a suit to review, but must elect between these two remedies. Traders Ins. Co. v. Carpenter, 85 Ind. 350; Klebar v. Town of Corydon, 80 Ind. 95; Searle v. Whipperman, 79 Ind. 424; Dunkle v. Elston, 71 Ind. 585. But while we concur with counsel in their statement of the general rule, we can not hold that the rule benefits them, for they have not properly invoked its assistance. A question of the pendency of an appeal, or of another action pending, can not be presented by a motion to dismiss. The proper method of presenting such a question, where, as here, the fact that an appeal has been prosecuted or is pending is not apparent on the face of the record, is by answer.

The reply in the original action was in two paragraphs, the first of which was a general denial. The demurrer to the reply, omitting formal parts, reads thus: "The defendant demurs to the second paragraph of the reply herein and says, that said paragraph does not state facts sufficient to avoid the allegations contained in the answer to which it is intended to be a reply." The introductory clause of the first paragraph of the reply is in these words: "The plaintiff, for reply to the second paragraph of the defendant's answer, says," and the introductory clause of the second paragraph of the reply is as follows: "And for a second and further reply the plaintiff says," and it is contended by the appellee that the demurrer is defective because it does not show what paragraph of the answer the reply is not sufficient to avoid. This contention can not prevail. We think the only reasonable and just construction of the reply is, that it was addressed to the second paragraph of the answer, and we also think

Buscher v. Knapp, Adm'r.

that the demurrer fairly indicates that the reply was challenged because of its failure to state facts sufficient to avoid that answer. We are of the opinion that where a demurrer is sufficient to indicate with reasonable certainty what paragraph of the answer the reply fails to state sufficient facts to avoid, it presents the question of the sufficiency of the reply.

The complaint in the original action was upon two notes executed by the appellant to his father, then in life, but deceased at the time the action was brought. The second paragraph of the appellant's answer to that complaint alleges, that the notes sued on were executed as evidence of advancements made to the appellant by his father, and upon the latter's representations that "he only wanted the notes to satisfy his other children, and that he still intended the sums of money evidenced by the notes as an advancement of that much of his estate to the defendant, and that said sums of money, after his death, should be charged to the defendant." We hold the answer good. It is competent to show by parol the consideration of a promissory note, and where a note is shown to be without consideration, or is shown to be executed merely as evidence of an advancement by a father to a son, it can not be enforced. Peabody v. Peabody, 59 Ind. 556, and authorities cited. The answer before us shows that the notes sued on were executed simply as evidences that the father had advanced to the son the sums named in them.

The second paragraph of the reply avers that the payee of the notes was the father of the appellant; that he died testate; that by the terms of the will of the testator the notes were not intended for an advancement. We deem this reply bad. It counts wholly upon the will; it does not aver that the notes were not executed as evidences of advancements. The averment does not refer to the time the notes were executed, nor to the agreement then made, but refers exclusively to the will. We suppose it to be too clear for argument that where a father does advance money to his son, and receives notes as mere evidences of advancements, he can not, by

Stout v. The Board of Commissioners of Grant County.

his will, change the nature of the transaction. Had the reply denied that the notes were executed as evidences of advancements, there would then be great force in the appellees' contention that the reply was good as an argumentative denial; but this it does not do. It confesses-because it does not deny the allegations of the answer, that the notes were executed as evidences of advancements, and seeks to avoid these allegations by averring that "by the terms of the will of the decedent, the notes mentioned in the defendant's answer were not, and never were intended, for an advancement." This averment, and it is the only one in the reply that resembles a denial, puts the whole case upon terms of the will. It is clear to our minds that the reply was fatally defective, and that the complaint for review states a cause of action. Judgment reversed.

Filed Sept. 16, 1886.

No. 12,279.

STOUT v. THE BOARD OF COMMISSIONERS OF GRANT

COUNTY.

COUNTY COMMISSIONERS.-Pleading.-Practice.-No formal pleadings are required in the presentation of a claim against a board of county commissioners. It is only necessary to file a written statement or account giving the nature of the claim, and so identifying it as to bar another proceeding upon it.

SAME.-Formal Pleadings.—But where the parties elect to file formal pleadings and to form issues of law upon the facts contained in any of such pleadings, the sufficiency of the facts thus pleaded may be ruled upon as in other cases.

STATUTE.-Construction.-Legislative Intention.—In construing a statute the probable intention of the Legislature must be kept constantly in view. SAME.-When Intention Governs Letter.-The legislative intention, as collected from an examination of a statute, will prevail over the literal import of particular terms, and the strict letter of the statute, when an adherence to the letter would lead to injustice, absurdity, or contradictory provisions.

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Stout . The Board of Commissioners of Grant County.

SAME.- Uncertainty.—Legislative History.-Where a statute is of uncertain meaning, by reason of obscurity in its phraseology, a recurrence to the circumstances under which it was passed may be had to ascertain the probable intention of the Legislature in enacting it, and to that end the legislative history of the statute may be inquired into. SAME.-Contemporaneous Legislation.—In case of doubt or uncertainty, acts in pari materia, passed either before or after and whether in force or not, and contemporaneous legislation, not precisely in pari materia, may be referred to in order to discern the intent of the Legislature in the use of particular terms, or in the enactment of particular provisions. SAME.-History of Country.-Judicial Notice.-The history of a country, its topography and general condition are elements which enter into the construction of the laws made to govern it, and are matters of which the courts will take judicial notice. SAME.-Fees and Salaries.-Public Sentiment.-Judicial Notice of.-It is an historical fact, of which the courts will take judicial notice, that when the Legislature of 1879 met, and for several years previously, there was a strong public sentiment in favor of the reduction of the fees and salaries of public officers, which constituted an important factor in the preceding general election, and this circumstance may be considered in ascertaining the legislative intent in the enactment of the statute of that year on the subject of fees and salaries. SAME.-Act of 1879.-Compensation of County Auditor.-Cases Adhered to.— Stare Decisis.-Under section 22 of the act of March 31st, 1879 (R. S. 1881, section 5907), concerning fees and salaries, a county auditor, in addition to his fixed salary, is entitled to $125 per year for each one thousand inhabitants of his county over fifteen thousand and not more than twenty thousand, and $100 for each one thousand inhabitants in excess of twenty thousand, and not to $225 per year for each one thousand inhabitants in excess of twenty thousand. Edger v. Board, etc., 70 Ind. 331, and Parker v. Board, etc., 84 Ind. 340, are adhered to and the doctrine of stare decisis applied.

From the Grant Circuit Court.

R. W. Bailey, J. R. Coffroth, T. A. Stuart, J. S. Frazer, O. B. Hord, A. W. Hendricks, A. Baker, E. Daniels, W. H. Calkins, W. F. Elliott, J. H. Baker and F. E. Baker, for appellant.

A. Steele and R. T. St. John, for appellee.

NIBLACK, J.-The appellant, Joseph W. Stout, presented a claim against the county of Grant to the board of commissioners of that county, at its March term, 1884, for an alleged

Stout v. The Board of Commissioners of Grant County.

balance due him for services as former auditor of such county. The claim was presented in the similitude of a formal complaint, averring that the appellant was auditor of said county of Grant from the 1st day of June, 1880, until the 1st day of November, 1883; that during all that time said county contained a population of twenty-four thousand persons, according to the last census taken by the United States; that the services of the appellant, as such auditor, had amounted to the aggregate sum of $9,652.05, on account of which he had received only the gross sum of $7,943.70, as illustrated by an accompanying bill of particulars; that the board of commissioners, herein above named, had only from time to time allowed the appellant, as a part of his salary, the sum of $100 for each thousand inhabitants in excess of twenty thousand, when he was, as he still is, entitled to receive, under the 22d section of the act of March 31st, 1879 (R. S. 1881, section 5907), concerning fees and salaries, the aggregate amount of $225 per year for each thousand inhabitants so in excess of twenty thousand. Wherefore the appellant demanded an allowance and judgment for $1,708.35, as a balance remaining due and unpaid to him.

The claim thus presented was rejected by the commissioners, whereupon the appellant appealed to the circuit court, where a demurrer was filed and sustained to the complaint, and where a final judgment upon demurrer was rendered against the appellant.

No formal pleadings are required in the presentation of a claim against a board of county commissioners. It is only necessary to file a written statement or account giving the nature of the claim, and so identifying it as to bar another proceeding upon it. Board, etc., v. Adams, 76 Ind. 504; Board, etc., v. Emmerson, 95 Ind. 579.

But where the parties elect to file formal pleadings upon such a claim, and to form issues of law upon the facts contained in any of such pleadings, the sufficiency of the facts. thus pleaded may be ruled upon as in other cases. Board,

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