20 Ind. App. 87 | Ind. Ct. App. | 1898
This case was transferred to this court by the Supreme Court. The city of Alexandria improved a portion of one of its streets. Bonds were issued by the city, and sold for the purpose of raising money to pay the cost of such improvement. This action' was brought by appellee, the holder of the bonds, to collect the assessments for the purpose of paying said bonds. The right of way of appellants’ does not abut the improvement, but lies back of certain abutting lots, and within one hundred and fifty feet of the improvement. The lots and parcels of land abutting the improvement, and lying between the right of way and the improvement, were assessed, and the owners of these abutting lots and parcels of land, after the assessments were made, waived all defenses they may have had to such assessments and agreed to pay the same.
The trial court ordered a foreclosure of the liens against the abutting property owners, and also gave a personal judgment against those who had signed the .waivers, and also gave judgment against appellants for any balance remaining unpaid of the assessment of the intervening abutting owner after such property had been sold and the owner pursued to insolvency. The railroad companies alone have appealed, and first question the sufficiency of the complaint.
As the right of way of appellant does not abut on the improved part of the street, they could be made
In the case at bar the abutting owners and those owning lots within the limit of one hundred and fifty feet were joined as defendants, and we think this is permissible under the statute. The statute intends that if the abutting property is insufficient to pay the assessment other property back one hundred and fifty feet shall then be liable. We see no reason for not determining the whole question in one suit. The engineer, it is true, has no power to assess, in the first instance, property secondarily liable; nor 'does the
The waiver signed by the abutting property, owners has no effect in any way in determining the rights and liabilities of appellants. Without holding to what extent such a waiver would be conclusive against the abutting property owners who signed it, it is evident that such waiver can in no way affect the rights of persons whose property is only secondarily liable. Appellants waived no defects, and the statute empowers no one to waive such defects for them. They can rightfully insist that appellee shall show that such steps were taken as result in a valid lien. A valid assessment is the basis of appellants’ liability. The statute has provided the manner in which such an assessment may be made. The only power to make it is found in the statute. If the statute is not followed, no assessment with its resulting lien is made. The statute plainly provides the steps to be taken by the council in making such an improvement, and it can be made in no other way. The complaint must show that the council took such jurisdictional steps as legally authorized it to make the improvement. This the complaint does not do.
While the holders of the bonds brought the suit, yet the action is not based primarily on the bonds, but upon the proceedings of the common council and the assessment of the property. The rights of appellee in this action are not greater than those of the contractor had he brought the suit; and any defense appellants would have had against the contractor may be interposed in this action. There is a special finding, but this does not cure the defect complained of. Where a necessary and material averment is wholly omitted from a complaint, such defect cannot be cured