133 Ind. 336 | Ind. | 1893
The appellants make three assignments of error in this court: First, upon the ruling of the lower court in sustaining a motion for an entry, nunc pro tunc, of a ruling upon a demurrer to the original complaint; second, the sustaining of a demurrer to the amended complaint ; third, the action of the court in dissolving the restraining order issued upon the original complaint.
The first assignment is not discussed hy the appellants,
The second assignment, the sustaining of the demurrer to the second amended complaint, is the only question for consideration. This pleading is in one paragraph, and is of such great length as to require a statement of its character, rather than a copy at length in this opinion.
The plaintiffs below, appellants in this court, alleged facts showing that the city of Wabash, through her common council, civil engineer, and city commissioners, took steps to improve the street and sidewalks of Ferry street, from Carroll street to Thorne street, one full square; that such steps were taken without a petition from two-thirds of the property owners interested; that notice was given of the order for the improvement; that notice was given for bids and contract for the grading, paving of the walks, and the macadamizing of the street; that a contract was made, the grading done, the paving completed, and the crushed stone put upon the street; that the civil engineer reported the cost of the improvement to a eom
Treating the proceedings as void, the plaintiffs seek to enjoin the assertion of liens upon their lots for the improvement, and they seek damages for the injuries so alleged.
The complaint contains no allegation as to the findings, or record of the findings, of the common council upon any matter in dispute, nor is it shown that the council failed to make any finding upon jurisdictional questions.
It is said that the proceedings were bad under the act of March 8, 1889 (Elliott’s Supp., section 812), and that, in the respects complained of, the council had acted without compliance with that act. In McEneney v. Town of Sullivan, 125 Ind. 407, this court held that, under - the act in question, the improvement might be ordered without petition, and that, in the absence of a showing to the contrary, it will be presumed that the council’s action was
In the case above cited it was further held, upon numerous authorities cited, that a decision by the council upon jurisdictional facts is conclusive against a collateral attack. In the absence of a showing to the contrary, it will be presumed that the council decided jurisdictional questions correctly, and they will remain at rest. See, also, Barber Asphalt, etc., Co. v. Edgerton, 125 Ind. 455. The court said, in this case, that “ where the statute required the filing of a petition as a condition precedent to the exercise of jurisdiction, or the giving of some particular notice, if a petition was filed, though defective, or some notice was given, though not in compliance with the statutory requirement, the proceeding is not void, and will be sufficient to withstand a collateral attack.” Numerous cases are cited from the Indiana decisions in support of this conclusion.
The appellants could have contested, before the city council, many of the questions raised in this proceeding, including benefits and damages to their property, but they could not stand by while the contract was being executed, and the improvement was being made, and, after taking the chances of the benefits to their property, embarrass the city or the contractor by denying the propriety of the work, and by objecting to the manner of its execution. Nor could they, after being thus estopped to assert, in the council proceeding, their remedy for damages, elect to pro
The complaint alleges that, upon the completion of the work, and with a view to charging the property of the plaintiff with the cost of the work, the civil engineer of the city reported the cost of the improvement; that notice was given of the hearing upon said report, and that the plaintiffs appeared at said meeting and filed objections to the report. In the steps so taken, the plaintiffs pursued their legal remedy; they submitted, so far as said report was concerned, to the jurisdiction of the tribunal charged by law with an adjudication upon the questions involved.
Where a remedy is given by law, and where that remedy is accepted, the remedy sought in this case will be denied. We conclude that the action of the court below, in sustaining a demurrer to the amended complaint, was not erroneous. The judgment is, therefore, affirmed.