Cohen v. Coleman

Cohen v. Coleman. Summary Proceedings agavnst County Treasurer for FaiVwre to pary Glai/m against the County. 1. Summary judgment against county treasurer for failing to pay allowed claim ; when motion insufficient. — The summary remedy against a county treasurer for failing to pay a claim against the county under the provisions of section 3395 of the Code, can only be maintained when the demand sued for is an “allowed claim” against the county; and hence, a motion which fails to aver that such claim had been allowed, is insufficient on demurrer. 2. Sheriff ’ s fees for summoning witnesses for defendantsin State cases ; not a claim against the county.- — A sheriff’s fees for summoning witnesses for insolvent defendants in criminal cases, being for services rendered for the defendants, are not a charge against the fine and forfeiture fund of the county. Appeal from Greene Circuit Court. Tried before Hon. Samuel H. Speott. This was a motion for a summary judgment, under the statute, by Benjamin Colien against Charles Coleman, as treasurer of Greene county, the grounds of which are sufficiently stated in the opinion. The defendant interposed a demurrer to the motion, which was sustained by the court; and the plaintiff declining to plead further, a judgment was rendered for the defendant. That judgment is here assigned as error. Head & ButleR, for appellant. T. ~W. ColeMAN, and H. C. ToMPKiNS, coniza. (No briefs came to tjie hands of the reporter.) [MAJORITY — STONE, J.] STONE, J. The summary remedy invoked in this case against the county treasurer can only be maintained when the demand sued for is an “allowed claim” against the county. Code of 1876, § 3395. The motion, taking the place of a complaint, failed to aver the claim sued on had been allowed, and • therefore failed to aver any statutory ground of recovery. The demurrer was rightly sustained.—2 Brick. Dig. 464, § 6. In the first paragraph, or ground of the motion, the claim asserted consists of fees alleged to be due the sheriff for summoning witnesses for defendants in State cases — the defendants being insolvent. Such services are rendered for the defendants, and must be paid for by them. They are not a charge against the fine and forfeiture fund. Affirmed.