James v. Board, etc.

period of such service the clerk, sheriff, and recorder of the county collected, of fees and costs for services rendered by them, $11,765.40, and the total salaries of these officers for that period amounted to $11,375, the amount of fees and costs collected and turned into the county treasury by them all exceeding the total amount of their salaries in the sum of $390.40; that at each quarter the total amount collected and paid into the county treasury by the clerk, sheriff, and recorder exceeded the total amount of their salaries; that at the December, 1897, March, June, September, and December, 1898, and March and June, 1899, sessions of the board of commissioners of that county, the appellant filed with the auditor of the county, more than five days before the commencement of these several sessions, his claim for his quarterly salary in the sum of $550. The complaint showed the amount of these quarterly claims allowed and the amount thereof disallowed at each session of the board, the sum of all the allowances being $2,208.56, and that of all the disallowances being $1,641.44. The appellant claimed judgment for the amount of these several disallowances with interest.

The appellant in his brief contends that if the clerk, recorder, and sheriff, collectively, earn, collect, and pay into the county treasury each quarter as much money as equals all their quarterly salaries, or more, each of them is entitled to be fully paid quarterly the salary due to him, that is, the one-fourth part of the salary designated by statute, notwithstanding some one of them, severally (in this instance the sheriff), has not collected and paid into the treasury, of fees earned by him in his office, for such quarter, an amount of money equal to his quarterly salary as designated by the statute. The question thus alone presented involves merely a construction of pertinent provisions of the fee and salary law of 1895, under which the appellant was serving.

By $21 of that statute, §6426 Burns Supp. 1897, it is

James v. Board, etc.

provided that the county officers named in the act (including the sheriff) shall be entitled to receive for their services no other compensation than such as is specified in that act, the annual salary thereby fixed (§54) for the sheriff of Henry county being $2,200. In §122, it is provided that sheriffs shall tax and charge "on behalf of their respective counties" the fees provided by law on account of services performed by such officers; that the fees and amounts so charged shall be designated "sheriffs' costs", but they shall, in no sense, belong to or be the property of the sheriff, but shall belong to and be the property of the county, etc.

Section 124 provides that the clerks, auditors, treasurers, sheriffs, and recorders, on the first Monday of December, March, June, and September of each year, shall each make a sworn report to the county auditor in writing, showing specifically the amount of fees collected during the preceding three months, and they shall pay to the county treasurer the amount shown by said report, and take the county treasurer's receipt therefor, which receipt shall be filed in the county auditor's office, and the auditor shall give to the officer a quietus for the amount paid by such officer, which sum shall be kept by the auditor and treasurer of each county as separate and distinct funds, to be known respectively as "clerk's fund", "auditor's fund", "treasurer's fund", "sheriff's fund", and "recorder's fund".

Section 126, as originally enacted, provided that the clerks, auditors, treasurers, sheriffs, and recorders of each county shall draw their salaries quarterly; that all salaries and compensations contemplated in the statute shall be paid out of any money in the county treasury belonging to the county and not otherwise appropriated, after orders to that. effect made by the board of commissioners, but in no case shall such be ordered paid until the services for which payment is sought shall have been rendered: "Provided, If the clerk, auditor, treasurer, sheriff and recorder in their respective counties, have not turned into the county treas

Felt v. East Chicago, etc., Co.

ury, out of the fees they inay have collected, a sum sufficient to equal the total amount of their respective quarterly allowance of salary, then a sum only shall be allowed equalizing [equaling] the sum turned into such treasury by each respective officer actually earned during his term of office.”

In 1897 this section was amended so as to make the proviso include therein only the clerk, sheriff, and recorder, the section not being otherwise changed by the amendment. Acts 1897, p. 31, §3532a Burns Supp. 1897.

It is provided by $127, that if there shall be any balance of salary due and unpaid to any such officer at the time of making the last return at the close of his term of office, and there be not a sufficient amount of fees collected by such officer remaining in the county treasury to pay such balance, it shall be paid to him out of the fees earned by him during his term of office when afterward collected by his successor.

That the amount of actual compensation of the sheriff depends, not upon what he with the other county officers, or any of them, shall pay into the county treasury, but solely upon the amount of fees earned by the sheriff severally and turned into the treasury as "sheriff's costs," seems to be the plain meaning of these statutes, which are manifestly incapable of the construction sought by the appellant. No argument other than a mere recital of the statutory provisions seems to be needed for this conclusion. Judgment affirmed.

FELT, TRUSTEE, v. EAST CHICAGO IRON AND STEEL COMPANY ET AL.

[No. 3,694. Filed October 29, 1901.]

APPEAL AND ERROR.—Judgment.—Form.—Objections which go to the form of a judgment cannot be successfully made for the first time on appeal. p. 496.

SAME.-New Trial.-A motion for a new trial because of the admission or exclusion of evidence must point out with reasonable certainty the evidence admitted or excluded and to which complaint is made. p. 497.

Felt v. East Chicago, etc., Co.

APPEAL AND ERROR.-New Trial.-Causes.-Assignments that "the judgment is contrary to the law and the evidence", and that "the judgment is contrary to the weight of the evidence", do not come within the requirements of subdivision six, §568 Burns 1901, "that the verdict or decision is not sustained by sufficient evidence, or is contrary to law." p. 497.

From Lake Circuit Court; J. H. Gillett, Judge.

Action by Frank B. Felt, trustee for Anna S. Holt, intervening petitioner, against the East Chicago Iron and Steel Company and Murray Turner, receiver. From a judgment for defendants, plaintiff appeals. Affirmed.

Stirlen & Dickson, W. Garnett, Jr., and O. J. Bruce, for appellant.

J. W. Youche, H. S. Barr and A. F. Knotts, for appellees.

ROBINSON, J.-On July 25, 1896, upon application made the day before, a receiver was appointed and took charge of appellee Iron and Steel Company's property. Four days later appellant filed his intervening petition averring that on April 14, 1896, the company had sold and delivered to him 300 tons of iron and steel; that when the receiver took charge two car-loads had been shipped, four more cars were loaded and were in the company's yards, but the employes of the company would not permit it to be shipped, and the balance was in the company's warehouse. An order was asked on the receiver for the balance of the iron not delivered.

There was a trial by the court and a general finding that there was due appellant from the company $2,900.28; that the receiver should apply on this debt the proceeds, so far as sold, of the four car-loads of iron loaded but not shipped. at the time the receiver took possession, and as to the balance of these cars of iron the receiver was ordered to hold the same subject to the order of appellant, "and the court now takes under advisement the question as to whether any of the other iron should be applied to the extinguishment of the above finding", and it was adjudged that the receiver

Felt v. East Chicago, etc,, Co.

pay appellant the proceeds of sale of the four cars above mentioned. Afterwards, on September 27, 1898, upon a further hearing, it was found and ordered "that no further deliveries of iron be made to him (appellant) than that heretofore ordered delivered to him."

Appellant has assigned errors (1) "that the court erred in overruling appellant's motion for a new trial; (2) the court erred in rendering judgment in said cause in not ordering the balance of said 300 tons of iron claimed by Frank B. Felt, trustee, to wit, 165 tons of iron, or the proceeds thereof, turned over by said receiver to said Frank B. Felt, trustee; (3) the court erred in not ordering said 165 tons of iron, or the proceeds thereof, to be turned over to said. Frank B. Felt, trustee; (4) the court erred in not setting aside the finding of fact that said Frank B. Felt, trustee, was not entitled to the balance of said 300 tons of iron, to wit, 165 tons of iron, and in refusing to grant a new trial in said cause."

The second and third specifications of error seem to be directed to the form of the judgment. But it is well settled that if a party is not satisfied with the form of the judg ment as entered he should present his objections to the trial court in a motion to modify, and that objections to a judgment can not be successfully made, for the first time, on appeal. Mansfield v. Shipp, 128 Ind. 55; Hormann v. Hartmetz, 128 Ind. 353, and cases there cited. If it should be said that these assignments are directed to the finding, and not to the judgment, they would properly come within the cause in a motion for a new trial that the finding was not sustained by sufficient evidence, or was contrary to law.

Appellant's motion for a new trial was as follows: “(1) The judgment is contrary to the law and the evidence in this cause; (2) the judgment is contrary to the weight of the evidence; (3) the judgment of the court should have been in favor of the interpleader; (4) the court permitted improper testimony over the objection of the interpleader;