190 Ind. 8 | Ind. | 1920
William W. Crapo and other plaintiffs filed a complaint in two paragraphs in the Lake Circuit Court, by which they sought to enjoin the city of Gary and the board of public works of that city, and certain contractors, named as defendants, from taking further steps to construct a certain sewer designated as “District Sewer, Number 35.” It is alleged that appellants are the owners of lands which will be affected by the sewer if constructed, and wliich will be assessed to pay for the cost of the work. The complaint sets out the record of the board of public works of the city of Gary, from which it appears that, on January 2, 1917, said board passed a declaratory resolution for the construction of district sewer No. 13; and that from time to time such further steps were taken and such further proceedings had before said board as resulted in an order establishing such sewer according to plans, maps and profiles which had been adopted. The record set out in the complaint further shows that notice of the letting of the contract was published, and that bids were received, and that the contract for the construction of the sewer was awarded on April 18, 1917. The complaint in this case was filed on June 14, 1917.
The complaint is very long, and the court does not attempt in this opinion to state its substance or to recite the facts on which the pleader bases his prayer for re
As relief, the plaintiffs asked that the construction of the sewer under the proceedings set out in the complaint be enjoined, and that the defendants and each of them be enjoined from taking any steps to impose on the lands of the plaintiffs any lien for the cost of said sewer, or from taking any steps to impose, or to enforce any lien against the lands of any of the plaintiffs for the costs of such work, or any part thereof.
The first paragraph of the complaint was dismissed,, ■and a demurrer for want of facts was addressed to the second paragraph, which the court sustained. Plaintiffs declining to plead further, the court adjudged that they take nothing by their complaint, and that the defendants recover their costs. From such judgment appellants prosecute this appeal, assigning as error the ruling of the trial court in sustaining appellee’s demurrer to the second'paragraph of complaint.
The transcript and assignment of errors were filed on November 10, 1917. On January 6, 1919, appellees filed a motion in this court, asking that the appeal be dismissed on the ground that the questions presented by such appeal had become moot.
On the same day that the motion to dismiss was filed, appellees filed with the clerk of this court a certified copy of the record of the board of public works of the city of Gary, showing the proceedings of said board with reference to district sewer No. 35, taken after the date on which the contract for construction was awarded as shown in the complaint. Bound in the same cover on which the file mark appears are two affidavits.
The certified- record shows that the city engineer of the city of Gary made his report and final estimate on district sewer No. 35 to the board of public works of said city, showing that it had been completed, and showing the amount due the contractor for the work, which report and final estimate .were accepted and approved by said board of public works on October 1, 1918. It also shows that, on October 28, 1918, said board by resolution adopted the primary assessment roll showing the benefits assessed against real estate affected by the improvement, and thereafter caused notice of such action to be given by publication in the Gary Daily Tribune, as shown by the affidavit of the publisher. The notice so published’ fixed November 18, 1918, as the day on which remonstrances by landowners feeling themselves aggrieved would be received and considered at a meeting of said board to be held at the city hall in Gary at 9 o’clock, a.m., on that day.-
On the day fixed a number of appellants filed remonstrances, questioning the validity and the amount of the assessments made against the lands owned by them and assessed with benefits, which remonstrances were
In addition to the facts so shown, it appears by the affidavit of William P. Cottingham that he was at the time the city engineer of the city of Gary; that he had examined the waivers filed by appellants, and that the real estate described therein includes all of the real estate described in the complaint against which any assessment was made on account of the construction of district sewer No. 35. The showing thus made is not controverted by any showing on behalf of appellants.
Appeal dismissed.