95 Ind. 370 | Ind. | 1884
Appellee commenced this action to collect assessments.alleged to be due on the construction of a certain ditch. A demurrer was sustained to the answer, and judgment rendered for the plaintiff.
Appellant has assigned error upon the sustaining of the demurrer to the answer, and insists that it should have been sustained to the complaint.
Five reasons are urged against the sufficiency of the complaint: First. It does not show that the original petition was verified.
This is not an appeal from the proceedings' to establish the ditch, nor from a direct attack to set aside said proceedings, but from a collateral proceeding to collect assessments based upon the original proceedings; which proceedings, if not shown to be void, are conclusive in this proceeding. The record not showing the contrary, the presumption is that the original petition was verified as required by the statute.
The second is that it does not show that the proper notice was given of the pendency in court of the original petition.
The averment in the complaint is, “ that at the April term, 1882, of the court, James Orear presented his petition praying for the drainage of his lands described in said petition; that such proceedings were had at the said April term of court, that the matters in said petition were referred to the commissioners of drainage, and .the cause was continued.” In the circuit court, it being a court of general jurisdiction, all reasonable presumptions are in favor of the action of the court; and where the record does not show the contrary, nor what notice was given, it will be presumed that the proper notice was given, or the court would not have referred the matter to the drainage commissioners. Horner v. Doe, 1 Ind. 130. This is the well settled rule of law. See the cases of Crane
The third objection is that the complaint does not show that the commissioners of drainage were not of kin to any of the parties interested.
This objection, for the reasons heretofore stated, is insufficient.
The fourth is, that no copy of the judgment of approval of the report of commissioners is filed with the complaint. This action is based upon the assessments, and not upon the judgment of approval; therefore, in such a case, a copy of the judgment need not be filed with the complaint.
The cases of Scott v. State, etc., 89 Ind. 368, and Smith v. Clifford, 83 Ind. 520, referred to by appellant, do not support his objection. In the latter case it was held that the action was upon the assessments, and that a copy of the assessments must be filed with the complaint. No such objection as that is made in this case. In the former case this question is not referred to. It has also been held by this court, that a j udgment is not a “ written instrument ” within the meaning of the statute requiring a copy to be filed with the complaint. Lytle v. Lytle, 37 Ind. 281; Mull v. McKnight, 67 Ind. 525.
The fifth and last objection to the complaint is, that there is no sufficient averment that the court approved the assessment. The averment in the complaint is, “That three days had elapsed since the filing of said report by said commis
In accordance with the spirit of this statute, we think the complaint in this case is sufficient, and that there was no error in sustaining the demurrer to the answer.
The judgment ought to be affirmed.
Pee Cueiam. — It is therefore ordered, upon the foregoing ■opinion, that the judgment of the court below be and it is in all things affirmed, with costs.