
    State, ex rel. Fast et al., v. Board of Commissioners of the County of Wells.
    [No. 20,585.
    Filed June 23, 1905.]
    From Wells Circuit Court; Edwin C. Vaughn, Judge.
    Action by the State, on the relation of Arthur C. Fast and others, against the Board of Commissioners of the County of Wells. From a judgment for defendant, plaintiff appeals.
    
      Affirmed.
    
    
      T. E. Ellison, for appellant.
    
      Dailey, Simmons & Dailey, for appellee.
   Montgomery, J.

Appellant brought this action against the appellee for a writ of mandate. It is shown by the petition and alternative writ that relators are petitioners for a public drain beginning in Allen county, and extending into the counties of Wells, Huntington and Whitley; that the boards-of commissioners of each of said counties duly appointed viewers upon said ditch, who accepted such appointment, qualified, and entered upon the discharge of their duties as such, and so acted for several months, and in that behalf incurred costs and expenses to the amount of $3,000 for the payment of which relators are liable. That on the 7th day of February, 1905, the three viewers appointed by the board of commissioners of Wells county, without relators’ consent, ceased to act, and filed with the board of commissioners of said county of Wells their resignations as such viewers, which resignations were on said date accepted by said board, and such acceptance spread of record. An alternative writ of mandate was issued, reciting the facts in detail, and requiring such board to show cause why a peremptory writ should not issue commanding it to set aside said order and record made by it accepting the resignations of said viewers, and forward to the board of commissioners of Allen county any and all resignations made to it in said matter.

Appellee demurred for want of facts to the alternative Writ of mandate, and the demurrer was sustained and an exception saved. Relators declined to plead over, and judgment was rendered against them for costs.

The assignment of errors calls into question for our consideration the ruling on this demurrer.

The question sought to be presented by this record is the same as that presented and decided in State, ex rel., v. Popejoy (1905), ante, 177. Upon the authority of that case it must be held that appellee’s demurrer was correctly sustained to the alternative writ of mandate in this case.

The judgment is accordingly affirmed.  