71 Ind. 7 | Ind. | 1880
This was an appeal by Abner P. Simonton, from the proceedings of the common council of the city of Elkhart, under the provisions of “An act in relation to the laying out, opening, widening, altering, and vacation of streets, alleys, and highways,” etc., approved March 17th, 1875, to the Circuit Court of Elkhart county, Indiana. Acts 1875, Spec. Sess., p. 17; 1 R. S. 1876, p. 318.
In section 14 of said act, it is provided that any person, “ having an interest in the lands, affected by such proceedings,” who “ shall deem himself aggrieved thereby,” may appeal therefrom “to any court of the county of general jurisdiction;” that,upon such appeal, the-city clerk should
With this statement of the law applicable to this case, we will first give a summary of the “ transcript of the proceedings of the common council and commissioners,” which, under the statute, must “be considered as the complaint” of the appellant. At a regular meeting of the common council of the city of Elkhart,- held at the council-room, on the 13th day of December, 1876, “ it was ordered by the common council, that the city attorney and Councilman Mather be instructed to investigate the matter of Fifth street;” and at a regular meeting of said common council, held at the council-room on the 27th day of December, 1876, the said city attorney and councilman reported, “ that we find that Fifth street has never been laid out further south than Marion street. We would recom
“Resolved by the common council, that the report of the committee on Fifth street be adopted; that all proceedings heretofore had for the extension of Fifth street be and the same are hereby reconsidered and abrogated; and that Fifth street be extended, in the same general direction and of the same width it now is, from Marion street to Harrison street.
“ Ordered by the common council of the city of Elkhart, that the city commissioners meet at the city council-room on the 5th day of February, 1877, at 10 o’clock a. m., for the purpose of assessing such benefits and damages as may accrue to land-owners from the extension of Fifth street from Marion to Harrison street, in said city; and the clerk is ordered to issue the proper notices to all persons to be affected, and the marshal to serve the same, according to law.”
Afterward, at a regular meeting of said common council, held on the 2d day of May, 1877, the city commissioners of said city, duly appointed and qualified under the provisions of the above entitled act, made their report in writing, in substance as follows:
“To the common council of the City of Elkhart: We, the undersigned, city commissioners of said city, would respectfully report, that, in accordance with your order of December 27th, 1876, we met at the time and place, and for the purpose, therein specified; that, at the request of the parties claiming to own the land sought to be opened, we adjourned from time to time, until to-day ; after hearing evidence and arguments of counsel, and after due ex*11 amination and deliberation, we.make the following report, to wit :
“First. That said Fifth street now does extend, and for several years past has extended, from Marion to Harrison street, of the width of four rods, being the same width of the balance of said street; and that no property will be taken in opening said street from Marion street to Harrison street;
“Second. That no one will be damaged;
“ Third. That no one will be benefited;
“Fourth. That the proposed extension will make no change in the length, width or direction of said Fifth street;
“Fifth. That the City of Elkhart pay the costs of these proceedings.”
And thereupon the following resolution was then and there unanimously adopted by the common council of said city of Elkhart, to wit:
“ Resolved, by the common council, that the report of the city commissioners, of April 18th, 1877, in relation to the extension of Fifth street, be accepted and adopted.”
The appellee, Simonton, answered in three paragraphs, of which the second was withdrawn, the third was struck out on the appellant’s motion, and the first paragraph was left in the record, as the appellee’s only answer. The appellant’s motion to strike out the first paragraph of the answer was overruled by the court, and its exception was entered to this ruling; and its demurrer to said paragraph, for the want of sufficient facts, was also overruled, and to this decision it excepted. The appellant then replied to the first paragraph of answer, in three paragraphs, to the first of which paragraphs of reply the appellee’s demurrer, for the insufficiency of the facts therein, was sustained by the court, and the appellant excepted to this ruling.
The following decisions of the court below are assigned, as errors, by the appellant, in this court:
1. In refusing to strike out the first paragraph of the answer;
2. In overruling its demurrer to said first paragraph of answer;
3. In sustaining a demurrer to the first paragraph of its reply;
4. In overruling its motion for a venire de novo;
5. In overruling its motion for a new trial; aud,
6. The court erred in its conclusions of law upon its special finding of facts.
We deem it necessary to a proper understanding of the questions presented by the record of this cause, aud of our decision of those questions, that we should first give a summary, at least, of the facts alleged by the appellee in the first and only paragraph of his answer, which we now do, as follows:
The appellee alleged, in substance, that the city of Elk-hart was and ought to be estopped as to the proceedings and action taken, and as to the decision and judgment of said commissionei’s and city council, finding and decreeing that said Fifth street then extended, and for many years last past had extended, from Marion to Harrison street, of the width of four rods, being the same width as the
It is necessary also, we think, that we should give, in this connection, the court’s special finding of facts, and its conclusions of law thereon, on the trial of this cause, in substance as follows:
“ This case having been submitted to the court for trial, upon the issues formed upon and by the first paragraph of answer and the reply thereto, and the plaintiff having requested the court to find the facts specially and state its conclusions of law thereon, the court does find as follows, to wit: The transcript filed in this case, and ‘ Exhibit A ’ filed with said answer, are true, complete and correct transcripts of the records and • proceedings which they purport to contain and set forth, and no other proceedings were had in such matter than such as are set forth in said transcripts. It is further found, that, after said pro
Afterward, upon its special finding of facts, the court stated its conclusions of law, as follows: ■
“ The court draws the following conclusions of law upon the facts specially found, to wit:
“ 2. The defendant is not estopped from availing himself of said estoppel against plaintiff'.”
Having thus given a full summary of what may be regarded as the facts of this case, and also of the proceedings of the circuit court thereon, as shown by the record, we proceed now to the consideration and decision of those questions which fairly arise, as we think, under the appellant’s assignment of'errors. The first and second errors may properly be considered together, as they each relate to the same subject-matter, namely, the first paragraph of the appellee’s answer. We have given a full statement of the matters alleged in this paragraph of answer, and it will be seen therefrom that the appellee relied upon the proceedings of the appellant’s commissioners and common council, as set forth in said paragraph, as absolutely estopping the appellant from prosecuting and maintaining the proceedings stated at length in its transcript or complaint on file in this cause. The appellant’s motion to strike out this paragraph, and the ruling of the court thereon, were made parts of the record by a proper bill of exceptions; and the ground of the motion, as stated therein, was that the paragraph attempted to raise a question that could not be raised i n this suit or proceeding.
We are of the opinion, that the court committed no error in overruling the motion to strike out the first paragraph of the answer. The statute governing ■ the proceedings provides, as we have seen, that the party appealing therefrom “ shall, in writing, state specifically the. grounds of his objection to the proceedings of the common council and commissioners,” and that this “written statement to be filed by the appellant, as aforesaid, shall be in the nature of an answer or demurrer.” The first paragraph of answer,
The question presented for our decision by the alleged error of the court, in overruling the appellant’s demurrer for the want of sufficient facts to the first paragraph of the appellee’s answer, is a much more difficult one. The paragraph, as will be seen from the summary of its allegations elsewhere given in this opinion, is an answer by way of estoppel. It sets up the proceedings of the appellant’s commissioners and common council, in a former attempt to extend Fifth street in said city of Elkhart, as an absolute bar or estoppel of the subsequent proceedings of said commissioners and common council, for an extension of said street, contained in the transcript or complaint in this case. The paragraph is founded upon the theory, as is apparent upon its face, that the proceedings first had by the city commissioners and common council, in regard to the extension of said street, were the decision
The appellee’s answer was founded upon the proceedings of the city commissioners and common council of said city of Elkhart, had on and before the 25th day of October, 1876, for the extension of Fifth street in said city, from Harrison street to the alley, a transcript of which proceedings was filed with, and made part of, said answer. In regard to the action of the common council upon the report of the city commissioners, there is a marked and matérial variance, as it seems to us, between the allegations of the answer proper and the copy of such action as contained in the transcript which is filed with and made part of said answer. Where such a variance exists, the rule is settled by the decisions of this court, that the copy will control, and will be presumed to be right until the contrary is shown. Mercer v. Hebert, 41 Ind. 459; Stafford v. Davidson, 47 Ind. 319; Crandall v. The First Nat'l Bank. etc., 61 Ind. 349; Carper v. Gaar, Scott & Co., 70 Ind. 212.
There is also; as we think, a marked and material variance between the allegations of fact in the answer proper, and the transcript filed with and made a part of said answer, in regard to the extent of the proposed extension of Fifth street; and in this particular the rule will apply, that the transcript controls, and will be presumed to be right until the contrary is shown. Wilson v. The Board, etc., of Hamilton Co., 68 Ind. 507, on page 515. Thus, it is
It appears from the appellant’s transcript or complaint, a summary of which we have heretofore given, that, subsequent to the proceedings relied upon by the appellee as an estoppel, the appellant’s common council discovered that Eifth street had- never been laid out farther south than Marion street; and thereupon, on the 13th day of December, 1876, they ordered and resolved that all' proceedings theretofore had for the extension of Eifth street, from the alley to Harrison street, should be reconsidered and abrogated, and “ that Eifth street be extended, in the same general direction and of the same width it now is, from Marion to Harrison street.” Under this order and resolution, the proceedings were had for the extension of Eifth street from Marion to Harrison street, from which the appellee took an appeal to the court below, and a transcript of which constituted there the appellant’s complaint in this cause.
The power of the appellant’s common council, under the law, to abrogate the proceedings first had for the extension of Eifth street from the alley to Harrison street, is denied by the appellee. In his answer, he alleged, inter alia, that the common council,by the votes of two-thirds of its members, duly determined to make the appropriation of the appellee’s real estate, to be taken by said street, and by a
In section 8 of the above entitled act of March 17th, 1875, prescribing the action of the common council upon the report of the city commissioners, in such cases, it is provided as follows: “ If the common council, within twenty-eight days after the filing of said report, shall, by a vote of two-thirds of the members thereof, determine to make the appropriation of the real estate for such improvement, they shall enact a resolution accepting said report, and requiring the city clerk to deliver a certified copy of so much thereof as assesses benefits and damages upon real estate, and in which the real estate so assessed is described to the city treasurer.” Acts 1875, Spec. Sess., p. 20; 1 R. S. 1876, p. 321.
Under these statutory provisions, it is very clear, we think, from the transcript of the proceedings first had, which was filed with and made part of the appellee’s answer, that those proceedings remained in fieri during the twenty-eight days next after the filing of the report of the city commissioners, and had never been consummated by the action of the common council thereon, as required by the statute. The appellee’s answer apparently proceeds upon the theory, that the city commissioners, under the statute, constitute a court, and that their report to the common council is in the nature of a judgment, and is final and conclusive even as to the city, unless its
We do not think that the city commissioners can be regarded, under the statute, as constituting a court, or that their report can be considered as in the nature of a judgment. The duties and powers of the city commissioners may properly be likened, as it seems to us, to the powers and duties of an ad quod damnum jury ; while the' report of such commissioners resembles somewhat the verdict of such a jury. The report of the city commissioners, in our opinion, has no binding force, and none of thq . attributes of a judgment, until it has been acted upon by the common council in strict conformity with the requirements of the statute. McMicken v. The City of Cincinnati, 4 Ohio State, 394; In re Mount Morris Square, 2 Hill, 14; In re Third Street, 6 Cowen, 571; Stafford v. The Mayor, etc., 7 Johns. 541; In re Beekman Street, 20 Johns. 269.
Eor the reasons given, we are of the opinion that the matters stated and set forth in the first paragraph of the appellee’s answer, and in the transcript therewith filed and made part thereof, were not sufficient to constitute a valid defence, by way of estoppel or otherwise, to the proceedings or cause of action of the appellant, as contained in its transcript or complaint; and that the appellant’s demurrer to said paragraph of answer, ought to have been sustained.
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to sustain the demurrer to the first paragraph of answer, and for further proceedings not inconsistent with this opinion.