19 Ind. App. 26 | Ind. Ct. App. | 1897
Lead Opinion
— This was a proceeding by the appellees against the appellant to foreclose a lien for street improvements of Napoleon street, in the city of Valparaiso, made on the property named in the com
A trial was had by the court, and a finding and
The record discloses the filing of an amended complaint over the objection of appellant. The filing of the amended complaint was clearly within the discretion of the court, and it will be presumed that leave was given. McMakin v. Weston, 64 Ind. 270; Bever v. North, 107 Ind. 544; Gardner v. Case, 111 Ind. 494; Louisville, etc., R. W. Co. v. Hubbard, 116 Ind 193; This amended complaint supersedes the original, so that it ceased to be a part of the record together with the pleadings addressed thereto. Kirkpatrick v. Holman, 25 Ind. 293; Specht v. Williamson, 46 Ind. 599; Trisler v. Trisler, 54 Ind. 172; Westerman v. Foster, 57 Ind. 408; Britz v. Johnson, 65 Ind. 561.
The answers theretofore filed to the original complaint and the replies thereto were refiled. The defendant Bozarth withdrew the demurrers filed by him except as to the complaint, and the record fails to show that a demurrer was filed to the amended complaint, but, as the eleventh error assigned is that the amended complaint does not state facts sufficient to constitute a cause of action, its sufficiency may be questioned in this appeal for the first time. McClure
We will consider the alleged errors in the order of their assignment. This being a proceeding to collect an assessment for street improvements, which is, by statute, made a lien on the property, the value of which is presumed to be enhanced by the improvement, is governed by section 4294, Burns’ R. S. 1894, which provides that: “Any owner of any lot who has been assessed more than the sum of fifty dollars thereon for the cost of such improvement who will not promise and agree in writing as hereinbefore provided, and all other owners of lots or parcels wherein assessments less than fifty dollars have been made or have heretofore been made against- any one lot or parcel, shall be required to pay his or their assessment in. full when made, and the same may be collected according to the provisions of amended section 10 of this act, or the contractor or his assigns may foreclose such assessment as a mortgage is foreclosed in any court of competent jurisdiction, and shall recover in addition to the amount of such assessment, with interest, all costs and a reasonable attorney’s fee.”
We think appellant’s proposition is' decided adversely to him in Bozarth v. Mallett, 11 Ind. App. 417, in which the court say: “This suit was brought by the appellee to foreclose a street-assessment lien. It is asserted by appellant that the only proper mode of collecting such assessments is by following the provisions of section 4298, Burns’ R. S. 1894. In this we think he is in error. It is expressly stated in section 4294 that as to those assessed more than $50.00 who do not elect to take the benefit of the ten years’ time allowed them, and those whose assessments are less than $50.00, the assessments ‘may be collected accord
The second error assigned is the sustaining the demurrer of appellee to appellant’s answer in abatement, which answer is hereinbefore substantially set out. The section of the statute under which this proceeding is brought does not require a contractor, nor any one for him, to file with the city clerk nor the common council of a city an affidavit for a precept to collect assessments; nor is it required that any bonds or certificates for or on account of the alleged improvement of the real estate be issued. There was, therefore, no error in sustaining the demurrer to this plea in abatement. Bozarth v. Mallett, supra.
The third and fourth assignments are not in the record. The fifth, eighth, ninth, and eleventh assignments of error call in question the sufficiency of the complaint. The first objection urged by the appellant to the complaint is that it contains no allegation that the work was done according to contract, nor does it set out a copy of the contract. While the complaint does not, in words, aver that the work was done according to contract, it does aver that the contract was let, after the council had duly advertised for bids, to the lowest bidder, and that thereafter, to wit, on the 8th day of September, 1893, the common council ordered the engineer to make estimates of the work done on Napoleon street, and said engineer did make report and estimates in accordance with law for said work done
Section 4294, Burns’ R. S. 1894, provides that upon the filing of the report required in the last preceding section (section 4293 providing that when the improvement has been made and completed according to the terms of the contract therefor made, etc.), “the common council of such city, or the board of trustees of such town, shall cause a final estimate of the total cost thereof to be made by the city or town engineer, and the common council of such city, or board of trustees of such town shall require said city or town engineer to report to the common council of such city or the board of trustees of such town the following facts touching said improvements,” etc. It will be presumed that the engineer and common council, nothing-appearing to the contrary, did their duty and that the estimates and assessments would not have been made unless the contract had been performed. The same presumptions will also arise as to the necessity and benefits of the proposed improvements, and that the property was properly the subject of taxation.
We cite as pertinent Darnell v. Keller, 18 Ind. App. 103, which was a suit to foreclose a statutory lien for an assessment for the construction of a sidewalk in front of appellant’s property. Appellant filed a counterclaim, proceeding upon the theory that the work was not done according to the plans and specifications, and that the appellant was damaged thereby, to which counterclaim the court below sustained a demurrer. Upon appeal this court held that a counterclaim would not lie in such case, using the following language: “If the failure to do the work
The opinion quotes from Cooley on Taxation, 468, as follows: “It is no. defense to an assessment that the contract for the work was not performed according to its terms. The proper authorities must decide upon this, and, if they accept the work, the acceptance, in the absence of fraud, is conclusive.” We understand the court to decide in the foregoing case that when a street improvement is made under a contract with a municipal corporation, and' the work is accepted by those authorized to pass upon the same, no defense but that of fraud can be interposed by the property owner in an action to enforce a lien of the assessment. This would seem to make the averment of the performancé of the contract in the complaint in this case unnecessary.
But the second paragraph of appellant’s answer alleges that the work was not done in accordance with the terms and stipulations of the contract under which
The next objection urged to the complaint is that it does not allege that there was a meeting of the common council and the committee of the common council to consider grievances, for the purpose of hearing and considering complaints of the property owners, etc. The complaint does aver that “on the 8th day of September, 1893, the common council ordered the engineer to make an estimate of the work done on Napoleon street, and said engineer <tid make a report and estimate in accordance with law and reported the same to the common council which met to hear and determine grievances, whereupon the common council received the same, and ordered notice given to the property holders by two weeks’ publication in the Porter County Vidette, a newspaper published and of general circulation in said city, that they would be heard on any grievance they might have at 1:30 p. m. on the 20th day of October, 1893; that at said time said committee, which had heretofore been appointed by the common council, met and heard all grievances and on the same day reported to the common council in favor of said engineer’s report and estimates, and recommended its acceptance.”
The seventh assignment of error is the overruling of appellant’s motion for a new trial., This motion is based on twenty-eight grounds. Appellant’s counsel admit that the first, second, third, and fourth reasons for a new trial are not properly in the record.
The fifth reason is that the judgment is contrary to law for the error of court in refusing a trial by jury, already passed upon, in considering the \ first assignments, and that, after the adoption of the resolution declaring a necessity for the street improvements, there was no notice given when property owners could make objections to the necessity for such improvements. While the statute provides for the giving of notice of the time and place where objections may be made to the necessity of the improvements, this notice is not imperative. “This question may be determined by such council without notice to the property owner who is to be affected by such improvement. Notice of the intention to make the assesment upon the property must be given. This notice was given.” Barber, etc., Co. v. Edgerton, 125 Ind. 455.
The sixth reason for a new trial is that the finding and judgment are not supported by .sufficient evidence. In this connection counsel calls attention of the court to the fact that, while the complaint demands judgment for $450.00 the judgment is rendered for $513.40. In the absence of an answer, the relief granted cannot exceed the relief demanded, but, if the defendant answer, the court may grant such relief
The eighth ground presents the question whether the common council can pave the whole or any part of the width of a street. Section 4288, Burns’ R. S. 1894, authorizes a common council to grade the sidewalks, or grade and pave the whole street. Under this section the common council had power to pave any part, of the sidewalk it might deem beneficial to the public.
The ninth reason for a new trial is alleged error in admitting in evidence notice of letting of bids for said improvement, on the ground that the publication’ was not made long enough prior to receiving bids. The language of the statute is that the contract may be given to the best bidder after advertising for three weeks in some newspaper of general circulation, published in the city, etc. Appellant contends that the last publication should be three weeks before the letting of the contract. The record shows that the notice appeared in the Porter County Vidette, a newspaper of general circulation, published in Porter county, Indiana, in three issues, namely, May 25th. June 1st, and June 8th, 1893, giving notice that the-contract would be let June 16th. This was three weeks. We do not think the language of the statute requires that the last publication should be three weeks before the time fixed for the letting of the contract. It appears from the record that when attorney for appellees offered to introduce the notice in question signed by S. Boss Whiting, city clerk, and proof of publication by Edward Welty, appellant objected in. the following language: “We object on the ground
■ Appellant, in his brief, argues that the affidavit or proof of publication fails to show whether or not the Porter County Vidette is either published or circulated in the city of Valparaiso, where the alleged improvement was made. This last .objection was not made to the court below. It should have been pointed out to the trial court, and as it was not it will not be considered on appeal. The court takes notice that Valparaiso is the county seat of Porter county. The notice invited bids for the necessary labor and material for the improvement of parts of Napoleon street, Jefferson street, and College avenue according to the plans and specifications contained in a resolution passed and approved by. the common council on the 23d. day of May, 1893. The plans and specifications made the notice definite and specific as to the proposed work.
The tenth and eleventh grounds for a new trial are for alleged error of the court in admitting in evidence a resolution directing the city engineer to make an estimate of the improvements and the estimate itself, for the reason that neither the estimate nor the resolution describe the real estate in controversy so it could be identified, or show an estimate of anything but a partial estimate of said Napoleon street, or that the real estate in controversy abuts 'On the pavement in controversy. This objection would go to the weight, rather than the competency, of this evidence.
The next error claimed is the admission in evidence •of the notice to property holders of the final estimate of said improvement. As hereinbefore stated, inasmuch as it appears from the record that the appellant appeared before the grievance committee and the common council in response to said notice, he was not prejudiced by any defect, if any, of the notice.
The next alleged error claimed is in admitting in evidence the resolution of the common council of Valparaiso, confirming the assessment for the street improvement in controversy. The ground of this and the sixteenth reason is that, if. the assessment was legal at all, it should have extended back from the line of Napoleon street at least fifty feet. This position of appellant is at variance with the expression upon that question by the Supreme Court
in City of Terre Haute v. Mack, 139 Ind. 99. We quote from the syllabus, which is borne out by- the text of the opinion: “Under the act of March 8th, 1889, Acts of 1889, p. 237 (section 4288 et seq., Burns’ R. S. 1894), assessments for street improvements can only be made against lots bordering upon the street as designated by a plat or other subdivision, and the liability of other lots back from the bordering lot and lying within one hundred and fifty feet of the street improved, arises only in the event that the border lot, against which the whole assessment must be levied, .fails to sell for a sum sufficient to pay the assessment, and then only for the deficit, in the order fixed by the statute.”
The seventeenth ground is the error of the court in
The twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh and twenty-eighth reasons for a new trial relate -to the rejection of evidence offered by appellant to show that the work was not done according to contract. As pertinent to these alleged errors, we quote from the record: “And on November 9th, 1894, the parties, by counsel, being present in court, the plaintiff now withdraws his objections to the proffered evidence of defendant as to whether the work was done in accordance with the contract, and thereupon the court offered to hear such further evidence upon that question as the parties shall see fit to do, and offers to set the cause down for further hearing for that purpose at such time as may be convenient for the parties. Whereupon the attorney for the defendant refuses to introduce further evidence.”
Appellant having refused to avail himself of the offer of the court, he cannot now claim that the court erred in refusing to permit the introduction of the same. We find no error for which the judgment should be reversed. Judgment affirmed.
Rehearing
— Upon the petition for a rehearing of this cause we have reexamined the questions presented by the assignment of errors. We cannot commend the complaint. It is not free from defects, but it is sufficient, as stated in the original opinion (being questioned here for the first time), to bar another action for the same cause. We are satisfied, from the whole record, that the cause was fairly tried, and that there was no error in the rulings of the trial court prejudicially affecting the rights of appellant. Petition overruled.