Close v. Twibell

47 Ind. App. 290 | Ind. Ct. App. | 1910

Watson, P. J.

— This is a suit brought by appellants against appellees to enforce an alleged street improvement assessment made under the provisions of the act of 1889 (Acts 1889 p. 234), as amended in 1891 (Acts 1891 p. 323), commonly known as the Barrett law, and to foreclose the lien thereof against a certain lot, described in the complaint, made in the improvement of that street in 1893 and 1894, and seeking also to declare a lien, because of said assessment, upon certain baek-lying lots to the 150-foot line from the improvement, and to subject the latter to sale iu their order for any deficit that might remain after the sale of the abutting lot. Appellants were the owners of separate bonds, issued on account of the improvement, and appellees, except the Northern Stone Company, were the owners at the time of the institution of the suit of the abutting and back-lying lots.

The complaint is in two paragraphs, the first one declaring on the assessment and the separate bonds of appellants issued on account thereof; the second one declaring on the assessment and the contractor’s assignments to appellants by certificates of estimate and otherwise of so much of his interest therein as is represented by the amounts of their several bonds. To each paragraph appellees filed separate answers in general denial. Upon trial the court made a special finding of facts and stated thereon its conclusion of law, to wit: That appellants take nothing by their suit, to which conclusion appellants separately excepted. Judgment was rendered in favor of appellees.

The error relied on by appellants for reversal is that the court erred in its conclusion of law.

1. It is insisted that appellants’ brief was not filed in time. The rules of the Supreme Court and this court require that appellants shall file their briefs within sixty days from, the date of submission. Appellants, before the expiration of sixty days, petitioned for and were granted thirty days’ additional time. This made ninety days in which appellants had to file their brief. The ninetieth calendar day from the date of submission fell on Sunday. Section 1350 Burns 1908, §1280 R. S. 1881, provides that time “shall be computed by excluding the first day and including the last. If the last day be Sunday it shall be excluded.” In the case of Hogue v. McClintock (1881), 76 Ind. 205, it was held that this statute is applicable to the filing of briefs, and therefore applies with equal force when an extension of time is granted.

In the special findings are the following facts: On April 3, 1893, and subsequently, Adams street extended north and south in the town, or city, of Montpelier, Indiana, from Water street to Monroe street. On said date the ground at the northeast corner of said Adams and Windsor streets was platted and subdivided, together with others, into lots one and two of block two, in Rhine’s first addition, and lot one in Miller’s addition. Each lot is 150 feet long, north and south, and 50 feet wide, east and west. Said lot two, of the same block and addition, adjoins said last-mentioned lot one on the east. Next to the east of said lot two is an alley fourteen feet in width, and next to the east of said alley is said lot one in Miller’s addition. The following plat shows the size and relative location of said lots, streets and alley, as shown by the assessment roll adopted by the board of trustees:

Said board of trustees in all things complied with the statutes with reference to making said improvement, contract and assessment against the property. On November 22, 1894, said board approved the report of said committee, and approved and confirmed the several assessments set forth in said engineer’s final estimate and report so approved by said committee, and thereupon assessed said lot one, block two, in Rhine’s first addition, standing in the name of 'William Twibell, in the sum of $452.62, on account of said improvement as set forth therein. To secure the privilege of paying said assessment in ten equal, annual instalments, said William Twibell, on December 12, 1894, filed with the clerk of said town his written waiver, and, in consideration of said privilege therein, agreed that he would make no objections to any illegality or irregularity as to said assessment, and would pay it and the several instalments thereof with interest when due, which said waiver and agreement said board accepted on the following day. Por the purpose of anticipating the collection of the aforesaid assessment, and others similarly deferred, said board, on December 13, 1894, adopted an ordinance for the issuance of bonds to the amount of $14,946.73, for the purpose of raising the money to pay for said improvement, said bonds to be issued in the name of said town and to contain the name of the street so improved and to be payable in ten equal, annual instalments, with interest at six per cent, payable semiannually. Among the bonds issued in pursuance thereof was bond No. 9-J- for the principal sum of $234.94, and also bond No. 9|- for the principal sum of $500, both of which, by their terms, were made due and payable June 1, 1904, to bearer, with interest at six per cent without relief from valuation or appraisement laws, said interest being payable semiannually, as evidenced by coupons thereto attached. Appellant, George W. Close is the owner of bond No. 9^, on which there is due and unpaid the total sum of $283.51, and appellant Richard D. Bakrow is the owner of bond No. 9f, on which there is due and unpaid the total sum of $389.41. Appellees Samuel B. and Inez C. Twibell are now the owners of said lot one, block two, Rhine’s first addition. Appellees Harry IT. and Jeanette Nill are the owners of said lot two, block two, Rhine’s first addition. Appellees Thomas and Margaret A. Shull are the owners of said lot one in Miller’s addition. Said lot one, block two, Rhine’s first addition is worth not more than $300. More than ten days before the commencement of this suit, appellants served on each of the appellees written notice of the aforesaid assessment and the delinquency in its payment, that they were the owners respectively of said bonds and the amounts due thereon, and therein demanded of said appellees that they immediately pay the amount of said assessment, with interest, to the city treasurer.

2. 3. It is insisted by appellees that the waiver set out and alleged in appellants’ complaint is not binding upon Samuel B. and Inez C. Twibell and Harry H. and Jeanette Nill, either as heirs or grantees of William Twibell; deceased, for the reason that the complaint does not seek a personal judgment against the parties, and that such waiver is not the foundation of the suit. The suit is founded upon the assessments so made, and the bonds in payment therefor, which are a lien upon the lots owned by the heirs and grantees of William Twibell, he having waived any and all defenses of any illegality or irregularity as to the proceedings, as required by the statute, and having taken the benefit of the ten-year payment plan. While it is true it is not sought in this suit to obtain a personal judgment against appellees, yet it is also true that when William Twibell, deceased, waived all defense of any illegality or irregularity as to the proceedings, he thereby waived it for his heirs and grantees, and it is therefore binding upon them. Richcreek v. Moorman (1896), 14 Ind. App. 370; Edward C. Jones Co. v. Perry (1901), 26 Ind. App. 554; Dunkirk Land Co. v. Zehner (1905), 35 Ind. App. 694; Scott v. Hayes (1904), 162 Ind. 548.

As to appellees Shull and Shull, no waiver was filed. By special finding number three, the court found that thirty-six feet of the west side of lot one* block two, in Miller’s addition to the city of Montpelier, is within a distance of 150 feet of Adams street, being the street upon which the improvement was made, and being between said Water street and Windsor street in said city.

4. Appellees contend, however, that the assessment roll upon final estimate did not sufficiently describe or identify the real estate which this lien is sought to be enforced against, and for that reason the assessment is void. The special findings show that the assessment roll, upon the final estimate adopted by the board of trustees, sufficiently describes the property so that a surveyor could find and establish the boundaries thereof. Cleveland, etc., R. Co. v. O’Brien (1900), 24 Ind. App. 547; Becker v. Baltimore, etc., R. Co. (1897), 17 Ind. App. 324.

5. The findings also show that the land lying immediately upon and adjacent to the line of improvement, back 100 feet, is insufficient to satisfy the assessment so made. Section 4290 Burns 1901, Acts 1889 p. 237, §3, provides “that where such land is subdivided or platted the land lying immediately upon and adjacent to the line of the improvement and extending back fifty feet shall be primarily liable to and for the whole cost of the improvement, and, should that prove insufficient to pay such cost, then the second parcel and other parcels in their order to the rear parcel of said one hundred and fifty feet shall be liable in their order.” Voris v. Pittsburg Plate Glass Co. (1904), 163 Ind. 599.

6. In 1 Page & Jones, Taxation by Assessment §622, it is said: “The term ‘adjacent’ as ordinarily used means that the property is near the improvement so as to be affected thereby and so as to enjoy the use thereof, but not necessarily touching such improvement. Accordingly, it is possible that land which is separated from an improvement by intervening land may be adjacent. Thus, where an intervening strip of land two feet in width separated a tract of land from a street, such tract was nevertheless held to be adjacent to such street.” Town of Woodruff Place v. Raschig (1897), 147 Ind. 517.

While the holding in the ease of City of Frankfort v. State, ex rel. (1891), 128 Ind. 438, seems to be in conflict with the views herein expressed as to the right to subject land beyond a public highway from the improvement and within the 150-foot distance therefrom, in that case it applied to unplatted land, and has been so construed in 1 Page & Jones, Taxation by Assessment §629, where it is said: “Statutes restricting the depth to which property can be assessed often apply only to unplatted land. Under such a statute a highway cannot be assessed, nor can land separated from the improvement by a highway, be assessed. ’ ’ In support thereof they cite City of Frankfort v. State, ex rel., supra.

In this ease we are dealing with platted and subdivided land. There is no authority to which we have been referred, nor can we find any which relieves the land from assessment within the distance prescribed by statute when platted and subdivided. This is true whether or not a highway runs through the land so designated to which the assessment attaches. The statute mates no exceptions, and we are without authority to do so.

The court erred in its conclusion of law. Judgment is reversed, with instructions to the trial court to restate its conclusion of law in this cause in favor of the appellants.