Heagy v. State ex rel. Forkner

85 Ind. 260

• Court: Indiana Supreme Court
• Decided: November 15, 1882
• Docket: No. 8651
• Status: Published

Opinions

Elliott, C. J.

The question which first requires consideration is, whether the auditor of the county is the proper relator in an action upon the official bond of the county treasurer where the breach alleged is the failure to account for and pay over taxes. The answer to this question is made by section 185 of the tax law of 1872, which reads thus': In any ■such case, the county auditor, on being instructed to that effect by the Auditor of State, or by the board of county commissioners, shall cause suit to be instituted against such county treasurer and his sureties.” 1 R. S. 1876, p. 117. The complaint in the present action shows that the relator was the auditor of Madison county, and that he was instructed by the Auditor of State to bring the action. There can be no doubt that he is the proper relator.

Appellee called and examined a witness, and the appellants,, upon cross-examination, propounded several questions which the court refused to allow the witness to answer. The appellee argues that, as the appellants did not make offer of what the witness would testify, no question is presented. It is the rule, where a party is examining his own witness, that he must state to the court what facts he can and will prove if the evidence is ruled admissible. This rule does not apply where-questions are asked upon cross-examination. The cross-examining party is not bound to state what facts he expects the witness to prove.

We think the testimony sought to be elicited by these interrogatories was relevant and material. The appellee had introduced in evidence a certified settlement sheet, and the testimony sought by the excluded questions was in explanation, and perhaps in contradiction, of the statements of that sheet. We can readily see that the testimony might have exerted a controlling influence upon the case. It is fairly inferable that it would have greatly lessened the burdens of the-appellants who were sureties upon the bond of the treasurer who had failed to pay over the taxes collected by him. The court erred in denying the appellants the right to have answers, made by the witness to the questions propounded by them, upon cross-examination.

The appellants at the proper time asked leave to make an-argument to the jury in behalf of their clients. This request was denied. The theory upon which the court proceeded evidently was that the settlement sheet estopped appellants from, denying any of the statements it contained. If the report and settlement did operate as an estoppel, then, doubtless, there was no question of fact to be argued, and we suppose that in civil actions, where all the questions are purely of law, entirely unmixed with questions of fact, the court may decline to permit counsel to address the jury. Under the decisions ■ of this court, as they stood at the time of the trial, the trial court ruled 'rightly in declaring the report to estop the treas-i urer and his sureties. Those decisions have been overthrown. The case of Ohning v. City of Evansville, 66 Ind. 59, expressly overrules them, and establishes a radically different doctrine.

It is but just to say that it is apparent that the judge who .tried the case was influenced and controlled in his ruling excluding the evidence .to which we have referred by the doctrine of the cases overturned in Ohning v. City of Evansville, supra.

.Judgment reversed.