The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-11-13
STATES SECOND VICTORY
VANDALIA sCHOOL-FUND CASE TO BE
TRIED ON ITS MERITS.
SUPERIOR Bench Holds that the 1878
Adjudication Is No Bar
to This Suit.


pending for almost a year, is based on an
alleged claim of the State against the Van
dalia Company, in which the sum of $1,000
600 is involved. 1t is contended that this
amount is due the school fund of the State.
BY prior decision of the Superior Court,
rendered on June 10 last, the railway COM
pany ruled to answer. Two months ago
the attorneys for the company filed an
answer in ten paragraphs. The State re-
piled to the answer in the form of demurr-
ers and on the questions presented in the
demurrers the court passed yesterday. The
attorneys for the State feel that they have
won a victory, as the case must now be
tried on it's merits. The main point involved
was whether a previous suit brought by
the State in May, 1875, was not bar to
the present suit.
On the question of former adjudication the
court says:
1.-THE real question presented is as to
whether the reply shows that the matters
now in contention are identical with the
matters claimed to have been adJudlcated
in the former action. There may pc some
doubt as to whether this question is one
of law or one of fact. If it be one of fact
it cannot be determined on demurrer.
THE reply contains specific denia! or the
allegations in the answer, IN winch IL is
set out that the matters now in contention
are the same matters as those adJudlcated
in the former action Such denial, II stand
ing alone, would be good reply and would
withstand the demurrer, but in addition to
this denial there is set out in the reply
complete copy of the complaint in the form
er case, and we are asked TO look into this
complaint so copied into the reply, and
from such inspection determine whether the
matters in contention in the two causes are
identical.
SECOND SUIT NOT BARRED.
'It is conceded that the two actions grow
out Of the provisions contained in the de-
PENDANTS charter, and to this extent they
are identical. 1t is now well settled by the
decisions Of our own and other States and
the Supreme Court of the United States
that a judgment for the defendant on de-
murrer to a complaint on account of the
omission of an essential allegation therein
will not bar a second suit by complaint
in which the omitted allegation is supplied.
A judgment in suit prematurely brought
is no bar to a suit subsequently brought on
the same cause of action. In the complaint
in the present suit there IS an express ale
cation Of demand made before suit was
brought. In the complaint in the former
suit the allegation of demand made is
Now looking to the first paragraph of
complaint we find that it is stated that
the defendant accepted the provisions of the
general law on Jan. II, 1873 The allega-
tons as to time of organization are the
same as in the second paragraph, and we
cation was in 1S47. In this paragraph the
capital invested is stated to be 81, 300 coo, but
the time when furnished is not stated in the
body of the complaint, but it is stated that
the sums furnished each year are set forth
in a statement filed with the complaint and
marked Exhibit A. The amount of net
is stated to be $SO00,000, but it is not stated
in the body Of the complaint as to how
much of said earnings were received prior
to Jan. H. 1873, but it is stated that the
amounts received each year are in a state
ment filed with the complaint marked Ex-
'If these Exhibits and B can be con-
sidered the foundation of the action, they
may be resorted to for the purpose of aid
foundation of the action they cannot aid
the complaint, but it must stand or fall upon
ment's reflection will, we think suffice to
convince anyone that these statements are
not the foundation of the action.
''If we are right in assuming that these
exhibits are rot the foundation of the ac-
ton we are wholly left to conjecture as to
when the capital investment was furnished,
and as to the amount of the net earnings
received prior to Jan. II, 1873, except as 1T
may be inferred from the amount of net
earnings shown to have been expended.
1--WE have not overlooked the allegation
in this paragraph that the defendant pur-
chased and held of it's own stocks at cost
of $550,000, but it is not alleged that they
were paid for out of net earnings. but for
aught that appears it may have been paid
for out of the 100000 surplus shown to
have been held. 1t is expressly stated that
the above investments and surplus funds
were used and held in violation Of the char
ter provisions requiring that all net earn
ings with certain exceptions, should be paid
on capital invested and the 10 per cent.
thereon.
NET EARNINGS AND CAPITAL
''There is another allegation which we
have not failed to notice, to wit, the allega-
ton that more than ten years ago the net
earnings largely exceeded the capital and 10
per cent thereon, and that it yet (now)
exceeds that sum by more than $1,5O0OOO.
This allegation might be true and still the
10 per cent. on the capital invested, which
Is per cent. must be paid before there would
be surplus earnings, would more than ex-
haust said excess of $1.5OO,OOO in the first
eight years of the ten years ago, or prior
to Jan. II, 1873.
wit, that the net earnings are now and have
been for long time in excess OF the capltal
invested, 10 per cent. thereon and 10 per
cent dividends thereon by near $2OOO.0OO.
The words net earnings are must refer TO
the time when the complaint was tiled. 1t
is not shown how long this excess had ex-
listed. The term "a long time is very IN
definite For anything that appears this
50 coo. 900 excess may have all been from earn
irgs received since Jan. II, 1873 and II so
the state had no interest therein.
ut seems to us that both paragraphs or
the former complaint might nave been heia
their own theory they each failed to show
that there existed any surplus earnings
over the amount necessary to pay back the
capital 10 per cent. theron, until the capital
was paid and Is per cent. dividends thereon
thereafter The complaint in the present
case supplies all these omissions and reme-
dies all these defects.
"The general rule in regard to former ad-
Indication is that everything which was or
might have been decided or Irrigated within
the issues will be presumed to have been
adiudcated: but this rule has some excep-
tons and one of those exceptions is that
where the Judgment is for the defendant,
and is based upon an order of the court
sustaining a demurrer to the complaint, the
very matter involved in the second suit was.
i'm fact decided in the former suit. And
where the decision may have been made
upon either of two or more facts, one of
which goes to the form and the other to the
merits and the record does not show which,
il will not be presumed that the decision
was upon the one going to the merits for
held to be adiudicated every other hypothe-
sis than that the very question was decided
must be excluded, and where the decision
might have been founded on one as well as
the other, such hypothesis is manifestly not
excluded"
The court says, in conclusion:
fsADplying these principles to the case at
bar we think it must be held that the de-
nurrer to the former complaint might have
been sustained upon either of three distinct
"First-On the ground that there was no
demand alleged in the complaint.
''Second-That the complaint failed to
show that there were any surplus profits
after paying back the capital. 10 per cent.
cont FIixvfd dc Of flrn