Winfield v. McCaslin

Harvey, J. 1. 2. Appellee’s decedent filed with the auditor of Cass county three separate claims against the county. The claims were allowed by the board of commissioners. Appellant,' as an interested taxpayer, appealed from the action of the board to the circuit court. In the circuit court the board successfully moved that said appeal be dismissed as to the board. No exception was taken to the order of dismissal, and no question is here presented as to the correctness thereof. The board of commissioners was in no manner thereafter brought into the circuit court in said causes, and the orders of the board allowing the claims were, by such dismissal, reinstated and so remain. 3. [309] 4. [308] The three appeals were consolidated and tried as one cause between appellant, Winfield, and appellee, McCaslin, administratrix, with the result in favor of appellee, sustaining the. action of the [309] board. It thus appears that the county was not, in any way, directly or indirectly a party to the appeal or to the cause in the circuit court. The board was a necessary party. Cline v. Beaver (1915), 183 Ind. 296, 108 N. E. 231; Eder v. Kreiter (1907), 40 Ind. App. 542, 82 N. E. 552. The Cline case was an appeal from an order of the board. The Eder'case was a suit by a taxpayer to recover money alleged to be owing the county by a former county clerk. The circuit court having no jurisdiction of the board, the judgment rendered by the circuit court is, so far as the county is concerned, a nullity. 5. The remaining contest in the circuit court was moot so far as the board’s allowance was concerned, and only involved a contest as to costs between appellant and appellee, and this court will not consider a cause on its merits in order to determine which party shall pay the costs of the action. State, ex rel. v. Lyons (1909), 173 Ind. 278, 90 N. E. 72; Dunn v. State, ex rel. (1904), 163 Ind. 317, 71 N. E. 890. This appeal should be dismissed. Elliott, App. Proc. §162. Abshire v. Williamson (1897), 149 Ind. 248, 48 N. E. 1027. It is so ordered. Note.—Reported in 116 N. E. 298. See under (1) 2 Cyc 727; 3 C. J. 931.