78 Ind. App. 21 | Ind. Ct. App. | 1922
— Action by appellant to enjoin appellees from the collection of $9,754.27 against his forty-four acres of unplatted real estate in the corporate limits of the city of Vincennes, for the construction of a sanitary local and district sewer. A temporary restraining order was issued.
Appellees filed their demurrer to appellant’s second amended complaint, mentioned hereinafter as complaint, and the court’s ruling in sustaining appellees’ demurrer, and in sustaining appellees’ motion to dissolve the temporary restraining order, are each assigned as error.
It appears by the complaint that appellant was assessed for the construction aforesaid as follows:
Appellant contends that such assessments were illegal and unauthorized by law for the reason that under the statute authorizing such proceedings it is provided that if, from its size and character, such sewer be intended and adapted, not only for use by the abutting property owners along the line of such sewer, but it is also adapted for receiving sewage from collateral drains already constructed, or which may be constructed in the future, then in that case the board shall make a division of the cost of such work, so much of the cost as' shall be equivalent to the cost of an adequate local sewer to be taxed against the abutting property owner, and the remainder against the area to be drained in proportion to its area to the whole tract to be drained.
That an action such as this cannot be maintained after the statutory ten days and after the work commenced has been determined by this court in the case of Kellems v. Republic Const. Co. (1921), 77 Ind. App. 18, 131 N. E. 545, where it was averred that contrary to the statute the cost of the improvement was more than 50 per cent, of the aggregate value of the property as it was assessed for taxation, exclusive of improvements. In that case, as in this, the proceedings were not void from the beginning and the court held that where the invalidity of a contract resulted from some irregularity or defect in the proceedings leading up to the letting of the contract, §8710 Burns 1914, supra, applies, and that the property owner who desires to take advantage of the irregularity must do so within the ten days’ time fixed by the statute, etc.
Appellant relies upon the case of Wilt v. Bueter, Treas. (1916), 186 Ind. 98, 111 N. E. 926, 115 N. E. 49, but in that case the court held that the provision of §8710 Burns 1914, supra, could not be successfully invoked in a suit brought to restrain the collection of the
We hold that appellant’s complaint does not state a cause of action for the reason that his action was not commenced within ten days after the letting of the contract or before the work commenced, and for the further reason that it does not appear by his complaint that he had tendered to the authorities the amount which was legally and properly due before commencing this action. There was no error in sustaining the demurrer to the complaint.
The judgment is affirmed.