Pudney v. Burkhart. From the Johnson Circuit Court. S. P. Oyler, for appellant. R. M. Miller and H. C. Barnett, for appellee. BIDDLE, J.-The complaint of Burkhart against Pudney avers the following facts: That Pudney was and is the sheriff of the county; that Martin A. Vaughn, on the 7th day of February, 1876, by the consideration of the Johnson Circuit Court, recovered judgment against Burkhart for two hundred and two dollars and forty-seven cents, and for the foreclosure of a mortgage on a certain town lot described; that, on the 13th day of March, 1876, a certified copy of the decree was placed in the hands of said sheriff, who levied on and sold said lot, on the 8th day of April, 1876, after having properly advertised the same; that, for the fee-simple of said lot, said sheriff received three hundred and sixty dollars and eighty-five cents, leaving a balance in the hands of the sheriff, after paying the decree, costs, commissions, etc., of one hundred and twenty-seven dollars and fifty cents, which last mentioned sum still remains in the hands of the sheriff unapplied. The decree and the sheriff's return thereon are made exhibits. That, at the time of said sale, the sheriff had in his hands, for service, an execution against Burkhart, Dunlap and others, as defendants, and in favor of the First National Bank of Franklin, for one hundred dollars and costs, under which no levy had been made, which execution was issued by the clerk of the Johnson Circuit Court, on a transcript from a justice of the peace; that, after said sale and before the payment of the money realized therefrom, Ellen Burkhart, the wife of the appellant, her husband at the time being absent from home, made her affidavit and schedule of property owned by the appellant at the time the execution in favor of the bank was issued, claiming therein the Pudney v. Burkhart. amount of three hundred dollars of said property, to be set apart as exempt from execution, averring that her said husband was a resident householder of Johnson county; that said Ellen filed said affidavit and schedule with said sheriff, and notified him that she had selected Daniel Waldon, a responsible freeholder of said county, to act as appraiser on behalf of her said husband, and demanded of him that said property be appraised, and that three hundred dollars in value be set apart under the exemption laws of this State, all of which the said sheriff failed and refused, and still fails and refuses to do. Prayer for a writ of mandate commanding the sheriff to appraise said property, and have the proper amount set apart as exempt from execution. A demurrer, alleging as cause that the complaint does not state facts sufficient to constitute a cause of action, was overruled, and exceptions entered. The appellant stood by his demurrer and refused to answer further; whereupon the court granted the prayer of the complaint, and rendered judgment accordingly. The complaint or motion was not verified by affidavit. For this defect the appellee insists that the demurrer to it should have been sustained. We are of a different opinion. If a pleading which the statute requires to be verified by affidavit is not so verified, and the opposite party accepts it, without objection for that reason, and takes issue of law or fact upon it, the objection will be considered as waived. Hagar v. Mounts, 3 Blackf. 57; Hagar v. Mounts, 3 Blackf. 261; McCormick v. Maxwell, 4 Blackf. 168; Dawson v. Vaughan, 42 Ind. 395. The proper practice is, in such cases, to move to reject the pleading for want of verification. A demurrer admits the truth of the pleading, and thus supplies the want of verification which is complained of. Pudney v. Burkhart. The appellant also claims that the writ of mandate will not lie, when there is any other adequate remedy. In this proposition we agree with him; but in this case the difficult question is: Is there any other adequate remedy? We think not. The act required of the sheriff is ministerial, not judicial. He has no discretion to do or not to do it. The law commands him. When the execution debtor claims property as exempted from execution, the language of the law is, that "The officer holding such execution shall cause the same to be appraised and set apart to the debtor." *** 2 R. S. 1876, p. 355, secs. 9, 10, 11. After levy made, perhaps the debtor might replevy the property if it was personal; in such case he would have an adequate remedy without the writ of mandate, but the debtor may demand the exemption before levy, and should it be refused him, we know of no adequate remedy except by writ of mandate. Writs of mandate may be issued to "compel the performance of an act which the law specially enjoins; or, a duty resulting from an office, trust or station." 2 R. S. 1876, p. 296, sec. 739. The act required to be done by the sheriff in this case is clearly a "duty resulting from an office," and there is no other adequate remedy against him. We think the following authorities will support our views : Hamilton v. The State, 3 Ind. 452; The Board of Comm'rs, etc., v. The State, 15 Ind. 250; Chapin v. Osborn, 29 Ind. 99; The Indianapolis and Cincinnati R. R. Co. v. The State, 37 Ind. 489; Kisler v. Cameron, 39 Ind. 488; The Green Mount and State Line Turnpike Co. v. Bulla, 45 Ind. 1; The Mayor and Common Council of Kokomo v. The State, 57. Ind. 152; Ex Parte Loy, 59 Ind. 235; The State v. Reitz, ante, p. 159. The judgment is affirmed, at the costs of the appellant. Hostetler, Adm'r, et al. v. The State, ex rel. Dean. HOSTETLER, ADM'R, ET AL. V. THE STATE, EX rel. Dean. PLEADING.—Supreme Court.-Complaint Cured by Verdict.—Practice.— A complaint insufficient on demurrer may, where no exception to the overruling of a demurrer thereto is taken, be cured by the verdict. OFFICIAL BOND.—Relator.—County Treasurer.—County Auditor.—In a suit upon the bond of a county treasurer for money not accounted for, the auditor of such county is the proper relator. SAME.-Settlement Sheets may be Explained by Parol Evidence.—In such suit it is proper to allow parol evidence as to the manner, and under what circumstances, settlement sheets between a former treasurer and the defaulting treasurer and between such defaulting treasurer and the auditor were made, where such settlement sheets are in evidence. SAME. Evidence.-Settlement Between Auditor and Treasurer.-In such suit a settlement sheet between such treasurer and auditor, certified by them as "a true and correct statement of delinquent taxes collected by the treasurer" for a certain length of time, "as reported by the treasurer to the auditor of said county, and the amount payable into the state treasury,' jointly signed by both parties, is relevant. SAME.-School Revenue.—Excessive Damages.-Practice.-New Trial.—If, in such suit, there be no right to recover for school revenue, that fact may be shown in the Supreme Court under the ground assigned for a new trial, that the damages were excessive. From the Lawrence Circuit Court. N. Crooke, F. Wilson and M. T. Dunn, for appellants. G. Putnam, G. W. Friedley, A. C. Voris and Dunn, for appellee. PERKINS, J.-Suit on a county treasurer's bond. A demurrer to the complaint was overruled, and no exception taken. A general motion to make the complaint more certain, specifying no particulars wherein, was overruled, and exception entered. A motion to strike out parts of the complaint, without -specifying which parts, was overruled, and exception noted. A motion to dismiss the suit, which motion specified no reason for dismissal, was overruled, and exception noted. Hostetler, Adm'r, et al. v. The State, ex rel. Dean. Answer in general denial, accompanied by an agreement, "that said defendants may introduce any evidence thereunder that they could under any state of pleading properly pleadable.' Trial by the court; finding for the plaintiff in the sum of seven thousand four hundred and thirty-two dollars and sixty cents, and judgment, over a motion for a new trial, on the finding. The errors assigned are two : 1. That the complaint does not contain à cause of action; 2. The court erred in overruling the motion for a new trial. The complaint was bad on demurrer, Hiatt v. Goblt,. 18 Ind. 494; but was good after verdict, no exception to its sufficiency having been saved. Scott v. Zartman, 61 Ind. 328. The only objection urged to the complaint in the brief of counsel is, that it does not contain the averment in reference to the bond sued on, "which is filed herewith, though a bond was filed which was shown on the trial to be that sued on. In this case, as we have seen, no exception was taken to the overruling of the demurrer to the complaint; hence it stands here as if no demurrer to it had been filed. The grounds specified in the motion for a new trial were: 1. The finding of the court is contrary to law; 2. The finding of the court is not sustained by sufficient evidence; 3. The court erred in admitting, over defendant's objection, evidence which was irrelevant and immaterial and illegal, to the admission of which the defendant at the time excepted, as shown by bill of exceptions filed; |