Cheek v. Tilley

31 Ind. 121

• Court: Indiana Supreme Court
• Decided: May 15, 1869
• Status: Published

Opinion

Frazer, J.

There was no error in allowing the amendment to the complaint, for such it was, though it is miscalled a supplemental complaint. It contains no supplemental matter. A party has a right by statute to amend ■ his complaint before answer. 2 Q-. & II. 117.

The contract between the parties does not show an attempt to sell an office, but merely the appointment of a deputy and an agreement that for his compensation the latter shall share the emoluments of the office. In all this there is nothing in contravention of public policy, as is suggested in argument. We can conceive of no valid objection to it. The question has received the attention of other courts, and, so far as we know, such agreements have uniformly received their santion. Becker v. Ten Eyck, 6 Paige Ch. 68; Mott v. Robbins, 1 Hill, 21.

It is certainly very plain that the case made by the complaint is a proper one for an injunction and a receiver, pending the cause, unless, as it is argued, such interlocutoi’y action by the court would transfer the duties of the office of clerkfrom the appellant, or interfere with his exercise ofthem.

The collection of his fees is not a duty imposed by law. It is a right which belongs to him as an individual, and not an official duty required of him. The plaintiff’ according to the facts alleged, has also the same right; for a portion of the fees are also his. This collecting can be performed by a receiver, without in any manner interfering with the discharge by the appellant of all the official duties required of him by law.

PTor do we think that the injunction should have been dissolved upon the affidavits. The appellant did not, under oath, deny his insolvency or his intention to apply the fees of the office, which he might collect, to his own use. So much of the complaint essential to the injunction as he dicl deny was supported by other affidavits. As the case thus appeared upon the affidavits, the injunction should not, under the chancery practice, have been dissolved, and there is nothing in the code which changes the former rule upon that subject.

X W. Gordon, X. 32. McDonald, A. L. Roache, E. M. McDonald, and X. W. JSHchol, for appellants. X. Schwartz, for appellee.

The unimportant questions of mere practice which arc made cannot affect the case, and need not, therefore, be decided.

Judgment affirmed, with costs.